FEDERAL COURT OF AUSTRALIA

Salama v Sydney Trains [2021] FCA 251

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The parties have liberty to apply within 7 days in the event that any consequential or other orders are sought.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant, Joseph Salama, was employed as a Transport Officer by the first respondent, Sydney Trains, from 28 August 2013 until 14 August 2017. On 24 July 2017, he was sent a show cause letter by the second respondent, Christopher Walsh, asking him to make submissions in response to allegations that his conduct may warrant the termination of his employment pursuant to the Performance and Conduct Improvement Procedure (Performance Improvement Procedure) applying to Sydney Trains personnel employed under the Sydney Trains Enterprise Agreement 2014. Pending his response, the show cause letter informed Mr Salama that he was suspended with pay, with immediate effect. Mr Salama’s lawyers responded to the letter on 31 July 2017. On 14 August 2017, he was dismissed.

2    Mr Salama alleges in these proceedings that by suspending him from his employment, advising him that he was required to show cause, threatening to dismiss him and then dismissing him (the impugned actions), Sydney Trains took adverse action against him in breach of ss 340 and 346 of the Fair Work Act 2009 (Cth) (FW Act). Mr Salama also contends that Sydney Trains acted in contravention of the Enterprise Agreement in breach of s 50 of the FW Act. He also alleges that Mr Walsh was a person involved in the pleaded contraventions by Sydney Trains within the meaning of s 550(2) of the FW Act. As a consequence, Mr Salama seeks declarations of contravention, orders for reinstatement pursuant to s 545(2)(c) of the FW Act, compensation for any losses arising out of the contraventions and orders imposing penalties on the respondents in respect of the contraventions.

3    Sydney Trains and Mr Walsh (whom I refer to collectively as Sydney Trains unless otherwise indicated) accept that they took the impugned actions, but dispute that in so doing they acted in breach of any of the provisions of the FW Act. They also deny acting in breach of the Enterprise Agreement and contest the right of Mr Salama to bring the proceedings against Mr Walsh.

4    The hearing was conducted in early March 2020, during which oral evidence of a number of witnesses was heard. Before closing submissions, the outbreak of the COVID-19 pandemic led to a disruption of in-person hearings in the court. However, the parties agreed that closing submissions could take place on the papers, and both parties filed, in lieu of oral closing submissions, extensive written submissions.

5    In order to explain the factual matrix relevant to the numerous factual issues in dispute, it has been necessary to set out in some detail a chronology of events, which I do in section 4 below, after first summarising some of the evidence of the witnesses and setting out the relevant law.

6    For the reasons developed in more detail below, I find that Mr Salama’s application must be dismissed.

1.1    The issues and summary of conclusions

1.1.1    The adverse action claims

7    Mr Salama contends that his exercise, or purported exercise, of workplace rights was the, or a, substantial and operative factor for the taking of the adverse action. On this basis he contends that Sydney Trains took the adverse action in breach of s 340 of the FW Act. He further contends that Sydney Trains breached s 346(a) of the FW Act, alleging that the fact of his status as an officer or member of an industrial association, namely the Rail Tram and Bus Union (RTBU), was a substantial and operative factor in the decision to take the adverse action.

8    Sydney Trains disputes this, and contends that the adverse action was taken for the reasons in the show cause letter (summarised in section 4.16 below), which sets out a series of allegations said to demonstrate that he was failing to:

    maintain suitable interpersonal skills and communications to allow for effective, fair and respectful working relationships;

    listen and follow reasonable instructions issued by his managers, without constantly challenging and arguing with decisions conveyed to him; and

    constructively receive feedback on work performance and participate in performance review meetings.

It relies on the evidence of the decision-makers, Mr Walsh and his superior, Gavin Kable, to support this contention.

9    It should be noted that for it to be determined whether adverse action was taken because workplace rights were exercised in breach of s 340, those workplace rights must be identified with some clarity. The amended statement of claim does not well or clearly plead what Mr Salama contends were his relevant workplace rights. One reason for this is because he purports to rely generally on “the material within the affidavits filed in the Proceedings” including, but not limited to, certain particularised events. However, by the time of the final hearing Sydney Trains had extracted some clarity from Mr Salama as to his position by obtaining further particulars. In addition, an agreed List of Issues, heavily footnoted to the pleadings and particulars, provides guidance as to the scope of the case relied upon. Even so, identifying precisely how Mr Salama put his case has presented a challenge.

10    Mr Salama relies on the following three forms of “workplace right”, as defined by s 341, protected by s 340(1) of the FW Act (the terms in bold are defined later in these reasons):

(1)    Section 341(1)(a): his role under a workplace instrument. In this connection, Mr Salama contends that he was recognised as a delegate under cl 38 of the Enterprise Agreement – a workplace instrument – and had responsibilities as a delegate including under cl 8 in relation to the Disputes Settlement Procedure (DSP). He submits that he had an entitlement to discharge this role under s 341(1)(a) of the FW Act in relation to the two disputes identified in more detail below as the Robertson 3 November 2016 meeting and the union rights dispute;

(2)    Section 341(1)(c)(ii): his ability to make complaints or inquiries in relation to his employment. In this regard, Mr Salama contends that in initiating the field start issue, request issue and notification issue he had the benefit of a workplace right within s 341(1)(c)(ii) of the FW Act; and

(3)    Section 341(1)(b): his ability to initiate or participate in processes or proceedings under a workplace law or workplace instrument. In this regard, Mr Salama contends that when he took actions with respect to various disputes commenced under the DSP under cl 8 of the Enterprise Agreement (being the field start issue, the request issue and the PCIP dispute), the stop bullying proceedings and his participation in a conciliation and conference in the FWC, he had the benefit of a workplace right pursuant to s 341(1)(b) of the FW Act.

11    Sydney Trains accepts that the impugned actions constituted adverse action within the FW Act. However, it submits that neither Sydney Trains nor Mr Walsh are liable for three broad reasons. First, because Mr Salama was not exercising workplace rights within s 341(1). Secondly, because even if the matters referred to in the show cause letter constituted an exercise of workplace rights, Mr Walsh and Mr Kable believed that they did not. Thirdly, irrespective of whether or not Mr Salama had exercised workplace rights or was a union delegate, or whether Mr Walsh and Mr Kable believed either of these facts, the court can be satisfied that the fact of Mr Salama exercising such a right or being a union delegate was not a reason for the adverse action.

12    In addition to the s 340 claims, Mr Salama also contends that Sydney Trains took the adverse action against him contrary to s 346(a) because he was an officer or member of an industrial association. Sydney Trains disputes this and contends that the fact of Mr Salama’s status as an officer or member of the RTBU was not a reason that the adverse action was taken.

1.1.2    The Enterprise Agreement claims

13    The cause of action pleaded under s 50 of the FW Act concerns whether or not Sydney Trains contravened terms of the Enterprise Agreement. Mr Salama contends that it contravened cl 8 of the Enterprise Agreement (the DSP) by failing to apply its terms in relation to: first, the union rights dispute initiated on 18 May 2017; and secondly, his complaint made on 21 June 2017 about the attempt by Sydney Trains to place him on a performance, conduct and improvement plan (the PCIP dispute).

14    Mr Salama next contends that Sydney Trains contravened cl 38 of the Enterprise Agreement in relation to: first, his participation in the Robertson 3 November 2016 meeting as a “support person” for James Robertson; and secondly, in relation to the union rights dispute.

1.1.3    Other issues

15    Having regard to my conclusions in relation to the primary claims advanced by Mr Salama, it has been unnecessary for me to consider and determine other issues arising on the pleadings. Those are: (1) whether the Court has jurisdiction with respect to the claim against Mr Walsh under s 550 of the FW Act given that he was not a party to the application made to the Fair Work Commission under s 365 of the FW Act and thereafter not a party to the dispute which was conciliated before the Fair Work Commission upon which the certificate issued under s 368; (2) whether or not Mr Walsh was involved in one or more of the contraventions by Sydney Trains of either ss 340 or 346; and (3) whether or not final orders under s 545 should be made.

2.    THE WITNESSES

16    The affidavit evidence addresses numerous incidents and confrontations involving Mr Salama and Sydney Trains personnel. The details of many are set out in contemporaneous emails and file notes prepared by the main protagonists identified in this section, and the closing submissions disclosed little in the way of disputed fact as to what occurred, and when. Generally, I found that the witnesses did their best to give their version of events truthfully. Where I have reservations as to the credibility of a witness, it is expressed in the sections that follow.

2.1    The witnesses called by Mr Salama

17    Joseph Salama provided four affidavits in the proceedings and was cross-examined. His written evidence is detailed and provides a fusion of editorial comment, submission, argument and evidence. It includes detailed reference to conversations and also exhibits numerous email chains and letters. Many of the matters to which Mr Salama refers concern disputes that he had with management personnel within Sydney Trains beginning in about April 2016, most of which were the subject of email correspondence which he, or other witnesses, exhibit to their evidence. I summarise aspects of his evidence below, insofar as it is appropriate to introduce elements relevant to the case advanced by him in closing submissions.

18    Mr Salama presented as an intelligent and articulate witness who had a detailed understanding of his case and the forensic issues involved in it. At times he demonstrated a propensity to tailor his evidence to suit what he perceived to be the forensic advantage of his interests in the proceedings. This has caused me to be cautious about accepting aspects of his evidence unless they are supported by corroborating material.

19    In his first affidavit dated 23 November 2018, Mr Salama gives evidence that his employment with Sydney Trains as a Transport Officer in the Fare Compliance Unit (FCU) commenced on 16 August 2013 and ceased on 14 August 2017. In about September 2013, he became a member of the RTBU. In about March 2014, he became a union delegate. On 21 April 2017, he was appointed as a health and safety representative (HSR) within the FCU. He gives evidence that in his position as Transport Officer he was principally required to issue infringement notices and act with NSW Police in relation to combined operations. He gives evidence that he worked from the Redfern office of Sydney Trains and reported to several team leaders from time to time whose tasks included to assess his performance and create a Performance Development Plan (or PDP) for him. He gives evidence that his performance rating, assessed on a scale of 1 to 5, never dropped below a “3” which designated that he was a “solid performer”.

20    Mr Salama refers to a performance review conducted by Charlie Keech in July 2016, who was then his supervising Senior Transport Officer. Mr Keech gave Mr Salama a “3” in his performance assessment. Mr Salama refused to sign the assessment on the basis that he considered it gave insufficient recognition of his performance. Mr Salama then made a complaint on 19 August 2016 regarding Mr Keech’s appraisal to the workplace conduct and investigation unit (WCIU) of Transport for New South Wales. Mr Salama gives evidence that he met with Ms McKendry on 31 August 2016, who was his Team Manager at the time, and asked to be moved to a different team. This request was refused. On 8 September 2016, he lodged a further written complaint to the WCIU concerning Mr Keech.

21    Mr Salama refers to an objection that he made on 14 September 2016 to Laurence (Tony) New about a decision to place Mr Keech in an acting team manager’s role. Mr New was at the time Manager of Fare Compliance, and the person to whom Ms McKendry reported. In the email, Mr Salama criticised the decision and suggested that it be reconsidered as “it may be viewed as one of a corrupt nature and would then leave me no choice but to refer the matter to ICAC”. He also refers to a complaint that was made to the WCIU about Mr Salama on 16 September 2016, which identified that the WCIU had been asked to investigate allegations that Mr Salama was engaged in bullying and harassment of work colleagues. He also refers to another WCIU complaint initiated by him regarding a letter he received from Mr New concerning attempts made by Mr Salama to rally a vote of no confidence in Mr Keech. Further reference is made to these events in the chronology in section 4 below.

22    Mr Salama gives evidence that on 3 November 2016 he attended a meeting with Mr Robertson, Ms Sweeting and Ms McKendry (the Robertson 3 November 2016 meeting). He considered that Ms Sweeting spoke inappropriately at the meeting and on 4 November 2016 filed a grievance with the WCIU. On 8 February 2017 he was notified in a letter from Brendon Gillies, Principal Manager of Workplace Conduct and Performance of Transport for NSW that, after conducting investigations, it was determined there was a difference in opinion between Mr Salama and Ms Sweeting regarding his role as a support person in the meeting which resulted in a breakdown in communication and a heated conversation. However, no indication of inappropriate action by Ms Sweeting was found to be established and the allegations were considered to be unsubstantiated.

23    Mr Salama gives evidence that on 11 November 2016 he received a letter dated 4 November 2016 from Mr New, Manager of Fare Compliance, concerning the Robertson 3 November 2016 meeting. In it Mr New clarified the role of a “support person” under Sydney Trains’ policies where a “Step 2 Attendance Management discussion” is held. This prompted Mr Salama on 14 November 2016 to lodge a complaint with the WCIU concerning this letter, cross-referencing his earlier complaint concerning Ms Sweeting, and stating that he believed that Sydney Trains management may be seeking adverse action towards him for filing the complaint.

24    Mr Salama also gives evidence that he received a letter from Mr New dated 16 November 2016 concerning allegations that he had made unsolicited telephone calls (on 2 September 2016) seeking support from other staff members to place a vote of no confidence with respect to Mr Keech. Mr New referred to “Section 2.1 of the Prevention and Management of Bullying and Harassment Policy” and recorded that the allegations were referred to the WCIU who considered that, while his actions did not constitute bullying, his behaviour was considered to be unreasonable and it was recommended that he be counselled about the incident. Mr Salama gives evidence that he sent a further email to WCIU alleging that Mr New’s further letter amounted to “maladministration, intimidation and adverse action”. He attaches a response dated 29 November 2016 in which Mr Powell, a senior consultant within the WCIU, confirmed that investigations supported the allegation (raised by Mr New) that Mr Salama had made the alleged unsolicited calls, and repeated the findings summarised in Mr New’s letter. Mr Salama exhibits an email from him to Mr Powell refuting the allegations and asking him to confirm that his grievance against Mr New “remains open”. Mr Salama gives evidence that when he was informed that the investigation was closed, he sent some five further emails to the WCIU protesting the matter, before he let the matter drop.

25    Mr Salama in his evidence addresses the context of a January 2017 meeting with Ms Hole to which reference is made in the 7 June 2017 letter (set out in more detail in section 4.11 below) and the informal counselling sessions to which it refers.

26    Mr Salama gives evidence of a further complaint that he made on 5 May 2017 to Ms Francisco, by then his supervisor, about the conduct of Mr Keech. This complaint concerned the lodgement of a form seeking reimbursement of $28 that Mr Salama had spent on uniform alterations (the uniform reimbursement dispute, see section 4.8 below). On 11 May 2017, at Mr Salama’s request, Ms Francisco referred the complaint to the WCIU. On 17 May 2017, Mr Salama was advised by the WCIU that the matter was not of sufficient seriousness to require further action and, as the matter had been resolved within the business, no further action was required by the WCIU.

27    Mr Salama also gives evidence that on 18 May 2017 he was invited to a first formal counselling session with Ms Francisco concerning this dispute, to which further reference is made in the chronology (see section 4.11 below).

28    Mr Salama gives evidence that on 21 May 2017 he initiated the stop bullying proceedings by making an application to the Fair Work Commission, a copy of which he exhibits. These proceedings are further addressed in the chronology in section 4.10. Mr Salama gives evidence that he commenced the stop bullying proceedings pre-emptively, to stop an evolving process seeking to force him from his employment at Sydney Trains due to his role as a union delegate and employee’s representative.

29    Mr Salama gives evidence that following this on 25 May 2017, Mr Skundric, another RTBU delegate, initiated correspondence with Mr Walsh concerning attempts made by Ms Francisco to oblige Mr Salama to attend formal counselling as part of the Performance Improvement Procedure.

30    Mr Salama gives evidence of a conversation held at a formal counselling session on 26 May 2017 which he attended together with Mr Skundric as his support person, and Damien Kane and Ms Francisco. A further meeting was held on 1 June 2017, attended by the same people with the exception of Lizanne Bennett who replaced Mr Skundric. Mr Salama gives evidence that at both meetings he disputed that either was a “formal” session. He gives further evidence that at the conclusion of the 1 June 2017 meeting Ms Francisco said that she would be drafting a Performance Conduct and Improvement Plan (PCIP) to give to him. A further meeting was held on 20 June 2017 at which Ms Francisco gave Mr Salama the 7 June 2017 letter referred to in more detail in the chronology in section 4.11 below.

31    Mr Salama records that on 24 July 2017 he received the show cause letter.

32    Mr Salama gives evidence that after receiving the show cause letter he retained Michael Vassili, solicitors, to send a response to which reference is made in section 4.16. During the course of his cross-examination, Mr Salama gave evidence to the effect that his lawyers had sent that response without his instructions. Nowhere in his written evidence did Mr Salama allude to this, and I reject it as incredible. I do not accept that the letter was sent without his instructions and consider this aspect of Mr Salama’s evidence to demonstrate a willingness on his part to tailor his evidence to meet what he considered to be in the interests of his own case.

33    Mr Salama also refers to the letter of termination dated 14 August 2017, which was given to him at a meeting attended by Mr Walsh, Jasmin Streimer (a senior workplace relations consultant) and Ms Bennett from the RTBU.

34    Mr Salama gives evidence that on 11 April 2018 the Fair Work Commission gave its decision in the stop bullying proceedings, which indicated that because Mr Salama had been dismissed from his employment the proceedings should be struck out: Mr Joseph Salama v Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting [2018] FWC 1845 at [53]. The proceedings were not determined on their merits: [49].

35    Mr Salama concludes his first affidavit by giving evidence concerning his claims for relief.

36    In his second affidavit, dated 15 March 2019, Mr Salama provides a detailed, paragraph-by-paragraph, response to the affidavit evidence of Mr Keech, Ms McKendry, Mr New, Ms Francisco, Mr Gillies, Mr Walsh and Mr Kable. In his third affidavit, dated 28 November 2019, Mr Salama provides a similarly detailed response to the evidence of Ms Streimer, a further affidavit from Mr New and a further affidavit from Mr Walsh.

37    In his fourth affidavit, dated 19 February 2020, Mr Salama provides updated evidence concerning his earnings history and identifies further attempts that he has made since the date of his first affidavit to secure paid employment.

38    Andrew Skundric is an employee of Sydney Trains who has been employed as a Transport Officer in the FCU since 2013. Throughout his employment he has been a member of the RTBU, and in 2015 became a union delegate. Mr Skundric gives evidence that in this role he performed his union duties in association with Mr Salama. He gives evidence in answer to affidavits supplied by Mr New and Ms Francisco.

39    Mr Skundric gave one affidavit and was not cross-examined. A further affidavit sworn by Mr Skundric was not read by Mr Salama.

2.2    The witnesses called by Sydney Trains

40    Kristen Anne McKendry was appointed to the position of Customer Area Manager with Sydney Trains in July 2017. Prior to that she was employed by Sydney Trains from May 2015 as Transport Team Manager – Fare Compliance. In her role as Transport Team Manager (TTM) she had responsibility for about five teams of five or six people, including Mr Salama, who always worked in her team along with Mr Robertson, David Spicer and Mr Keech. She gives evidence that, in early 2016, Mr Keech and Mr Salama both applied for an acting role as a TTM, however the role was given to Mr Keech. Ms McKendry gives evidence that Mr Salama and Mr Keech worked well together and were productive until about August 2016, after Mr Keech gave Mr Salama a “3” rating in his July 2016 PDP. Mr Salama refused to agree to the grading and would not sign it. After that, she found that Mr Salama raised concerns and made complaints about Mr Keech which he had not done previously.

41    Ms McKendry’s evidence includes reference to a number of disputes involving Mr Salama and complaints that he made in relation to the conduct of Mr Keech during the course of 2016, to which further reference is made in the chronology in section 4.

42    Ms McKendry also responds to Mr Salama’s evidence that the mediation conducted by Ms Hole was “part of an orchestrated process that had now been commenced within Sydney Trains to try and force [him] out of [his] then employment, and [his role] as a Union delegate”, denying that it was so.

43    Ms McKendry gave one affidavit and was cross-examined.

44    Charlie Owen Edward Keech is employed by Sydney Trains as a Transport Team Manager, Customer Service. He commenced his employment with Sydney Trains in 2003 and was appointed a Senior Transport Officer in 2015 in Team 5B. At that time, Mr Salama was a member of that team. Mr Keech reported to the TTM who reported to the Manager of the Fare Compliance Unit.

45    Mr Keech gives evidence that each day, he would receive a daily deployment from his TTM, which determined the mode of transport his team was to patrol (trains, ferries, buses or light rail), and it was his role to organise the team to complete the deployment. From around 2016 he occasionally acted in the role of TTM.

46    Mr Keech responds to allegations about him made in the evidence of Mr Salama. He also refers to becoming aware in September 2016 that Mr Salama was rallying other team members to lodge a vote of no confidence in him as the workplace health and safety representative for his team. Mr Keech found Mr Salama’s behaviour to be upsetting, and complained about that conduct to Mr New on 13 September 2016. He also refers to a mediation conducted by Ms Hole on 18 November 2016 which he understood to have been arranged to resolve an earlier grievance that he had with Mr Salama in relation to rostering arrangements.

47    Mr Keech also gives evidence responding to the allegations made by Mr Salama in the stop bullying proceedings.

48    Mr Keech gave one affidavit and was cross-examined.

49    Amba Francisco is employed by Sydney Trains in the role of Crew Manager, Penrith. From 1 June 2015 until 13 January 2019 she worked in the role of Transport Team Manager, which involved overseeing the day to day leadership and operational management of a geographically disbursed team of Transport Officers, in her case being six sub-teams across NSW, including Sydney City, Blacktown, Wyong and Wollongong. Ms Francisco describes the role of Transport Officer as being to patrol the Sydney Trains network to monitor and enforce fare compliance while providing customer service to the public. It is a role which she considers requires excellent communication skills.

50    Ms Francisco gives evidence that in about December 2016 she began managing Mr Salama when his team was transferred to her supervision and he became one of some thirty team members who she managed. She was at that time aware that Mr Salama had attended a mediation with Mr Keech, Mr Spicer, Mr Robertson and an external mediator in November 2016, the purpose of which, she understood, was to enable the participants to understand how to work together moving forward following unsubstantiated allegations being made by Mr Salama against Mr Keech.

51    Ms Francisco sets out, in some detail, a description of the context and the content of numerous communications that she had with Mr Salama in the period from January 2017 until July 2017, exhibiting the correspondence and her file notes.

52    Ms Francisco also exhibits an email that she wrote on 26 June 2017 addressed to Rachel Miller, Legal Counsel for Sydney Trains, entitled “Managers are fair game – when does it end?” (the “managers are fair game” email). In it she said, in summary, that she wanted to outline how she was currently feeling. She regarded herself to be a victim of a systematic attack by Mr Salama in which every time that a decision was made with which he disagreed, he either lodged a complaint claiming bullying, sought investigation through an independent body or challenged it until he got what he wanted. She said that she regarded herself as “fair game” in his eyes, and referred to the stress caused by managing Mr Salama and her concern about the management time taken up in having to respond to his various demands.

53    Ms Francisco concludes her evidence by stating that she has never had to work with or manage a more combative or argumentative colleague or employee than Mr Salama and that if he were reinstated as an employee and she were required to work with him again, she would feel let down, and strongly consider leaving Sydney Trains.

54    Ms Francisco gave one affidavit and was cross-examined.

55    Laurence Anthony (“Tony”) New is employed by Sydney Trains as the Manager of Fare Compliance. In his first affidavit, he gives evidence that on 2 February 2015, he began work as the second in charge at fare compliance until being promoted to his present position in July 2016. In his current role, Mr New oversees the business operations of fare compliance and has overall responsibility for 224 people, including seven managers. He gives evidence that Ms McKendry was Mr Salama’s manager until early 2017 when Ms Francisco became his manager. Both reported to Mr New. From late 2016, Mr Walsh became Mr New’s direct supervisor.

56    Mr New gives evidence that ordinarily in his role he would not have direct dealings with a person in the position of Mr Salama. However, because of Mr Salama’s attitude and behaviour, he was required to, which took a toll on him. He gives evidence that in the period between August 2016 and August 2017 he estimates that he spent at least an hour each day dealing with matters related to Mr Salama. Mr New relevantly gives evidence about:

(a)    Mr Salama rallying support to lodge a vote of “no confidence” against Mr Keech in September 2016;

(b)    Mr Salama’s conduct during the Robertson 3 November 2016 meeting;

(c)    Mr Salama’s stop bullying proceedings lodged on 21 May 2017;

(d)    the “managers are fair game” email sent by Ms Francisco and copied to him on 26 June 2017; and

(e)    his conversation with Mr Walsh about that email.

57    Mr New also gives evidence that if Mr Salama were to be reinstated he would either request an immediate transfer so that he would not have any interaction with him, or resign from Sydney Trains. He gives evidence that Mr Salama’s conduct took an emotional toll on him and that he has never come across anyone like Mr Salama, whom he considers impossible to reason with, in his working life.

58    In his second affidavit, Mr New responds to the affidavit of Mr Salama sworn on 15 March 2019 and the affidavit of Mr Skundric. In it, he addresses further matters including in relation to: the Robertson 3 November 2016 meeting; the union rights dispute that arose from the emails between Mr Salama and Ms Francisco between 17 May 2017 and 22 May 2017; and the field start issue set out in the email chain from 19 June 2017 until 25 June 2017 and picked up by Mr New when Mr Salama notified him of it on 25 June 2017.

59    Mr New was cross-examined.

60    Christopher Walsh is a deputy executive director of Sydney Trains and the second respondent. He has been identified by Mr Salama in these proceedings as the person who made the decision to issue the show cause letter and to suspend him from work. He is alleged to have been the decision-maker, or a decision-maker, together with Mr Kable in relation to the decision to terminate Mr Salama’s employment. He provided two affidavits.

61    In his first affidavit, dated 20 February 2019, Mr Walsh gives evidence that he commenced his employment with Sydney Trains in May 2013 as a stations customer manager for the Wynyard Group and in late 2016 was appointed to his current role. In this role, he has responsibility for 111 stations on the Sydney Trains network, comprising about 720 staff, and the FCU, which comprises approximately 230 staff including Transport Officers, taking the total employees under his supervision to about 950. He gives evidence that he has ten direct reports, including Mr New, the manager of the FCU.

62    Mr Walsh gives evidence that Mr Salama’s direct manager was Ms Francisco, who reported to Mr New. Although he had no direct working relationship with Mr Salama, by virtue of his position, he ultimately made the decision to suspend him from his employment and to issue the show cause letter. He gives evidence that shortly after commencing in his position he was aware that: there were challenging relationships within Team 5B, of which Mr Salama was a member; that a mediation had been conducted by an external mediator; and a letter was sent by Ms Hole to the team, concerning the need for members of the team to maintain suitable interpersonal communications. He gives evidence that he was authorised to issue the letter of termination by Mr Kable, in accordance with the section 8.1.2 of the Performance Improvement Procedure. He gives evidence that the reasons for the termination of Mr Salama’s employment are set out in the show cause letter.

63    Mr Walsh gives evidence of his knowledge of Mr Salama’s past conduct, his receipt of the “managers are fair game” email from Ms Francisco which was sent to him by Mr New on 27 June 2017, which he describes as the catalyst for the show cause letter. He gives evidence that the receipt of that email caused him to be concerned about the safety and welfare of Ms Francisco, whom he had known for a number of years and considered to be a resilient and fair person. He gives evidence of a meeting he had with Mr New on 19 July 2017, after he returned from annual leave, and determining on that date that action was required, including suspending Mr Salama from his employment. He exhibits a file note prepared soon after that meeting. Mr Walsh gives evidence that he met with Mr Salama on 24 July 2017 and provided him the show cause letter. He then identifies what he considers to be the basis for the numbered paragraphs in the show cause letter (see section 4.16). He also gives evidence concerning the 31 July 2017 response to the show cause letter received from the solicitors representing Mr Salama which, in his view, reflected a failure on the part of Mr Salama to show any insight or reflection going to the concerns raised in the letter. He formed the view that there was an irretrievable breakdown in the relationship and prepared a briefing note for Mr Kable recommending the termination of Mr Salama’s employment, which he exhibits. He then responds to the allegations made in the statement of claim and in Mr Salama’s first affidavit. He concludes with the following:

The applicant is the most difficult employee I have ever had to manage. I found him to be extraordinarily stubborn and unrelenting in his unfair and disrespectful behaviour. It was and remains my belief that he causes significant risk to the safety and wellbeing of those he works with.

64    In his second affidavit, dated 7 November 2019, Mr Walsh responds to allegations by Mr Salama concerning the union rights dispute.

65    Mr Walsh was cross-examined.

66    Gavin Richard Kable was employed by Sydney Trains in the position of Executive Director People & Communications from 7 October 2014 until 13 April 2018. He is no longer employed by Sydney Trains.

67    In his first affidavit, dated 18 February 2019, he gives evidence that according to Sydney Trains’ Performance Improvement Procedure, he had delegated authority to approve the dismissal of Sydney Trains employees for failure to meet the required performance standards where they did not demonstrate the required level of competence or suitability for their substantive position after undertaking a remedial program. He had no direct dealings with Mr Salama while he was employed by Sydney Trains. Mr Kable exhibits a briefing note, provided to him by Mr Walsh on 7 August 2017, seeking his approval to terminate Mr Salama in accordance with clause 8.1.2 of the Performance Improvement Procedure.

68    Mr Kable denies, as alleged in the statement of claim, that the reason Mr Salama was terminated was because he had, or exercised, workplace rights. His gives evidence that the reasons for Mr Salama’s termination are set out in the briefing note; namely, that after remedial action and steps to improve his behaviour were taken, he failed to demonstrate the required level of competence and suitability for his position.

69    In his second affidavit, dated 7 November 2019, Mr Kable denies that Sydney Trains took adverse action against Mr Salama for the reasons set out in the statement of claim (amended after Mr Kable gave his first affidavit), and reiterates the reasons for Mr Salama’s termination outlined in his first affidavit.

70    Mr Kable was cross-examined.

71    Jasmin Nicole Streimer was employed by Sydney Trains as the Principal Manager – Workplace Relations from 21 November 2016 until she swore her affidavit. In her affidavit dated 4 November 2019, she refers to the union rights dispute said to be in breach of cl 38 of the Enterprise Agreement and Mr Salama’s notification of a “Step 2” dispute on 23 May 2017. She also refers to the dispute in relation to the PCIP, arising out of the notification by Mr Salama of a “Step 1” dispute on 21 June 2017 on the basis of an alleged breach of cl 8 of the Enterprise Agreement. She also responds to other factual matters arising from the 15 March 2019 affidavit of Mr Salama and the affidavit of Mr Skundric.

72    Ms Streimer was cross-examined.

73    Brendon Paul Gillies has since early January 2018 been the Principal Manager of the Professional Conduct Unit within Group Rail, which consists of NSW Trains and the first respondent, Sydney Trains. From early 2015, Mr Gillies was employed by Transport for NSW as the Principal Manager Workplace Conduct and Performance in the Workplace Conduct and Investigations Unit (the WCIU) and, although not being employed by Sydney Trains, was ultimately responsible for all investigations within that organisation that related to workplace performance and conduct. In that role he was responsible for the triaging of grievances and alleged misconduct raised regarding employees, overseeing investigations in relation to those grievances and implementing alternative dispute resolution process and training for managers regarding employee behaviour.

74    Mr Gillies gives evidence about the following four complaints made by Mr Salama, and one complaint made about him, that were considered by the WCIU, annexing relevant documents within the files:

(a)    A complaint lodged by Mr Salama against Mr Keech on 19 August 2016 concerning alleged harassment and bullying by Mr Keech in relation to changed rostering arrangements, his award of a “3” PDP ranking and other matters. Mr Gillies notified Mr Salama that these were matters concerning day to day operations that should be discussed with line managers and were not for the WCIU;

(b)    A complaint lodged by Mr Keech in mid-September 2016 concerning Mr Salama’s attempt to rally a vote of no confidence in him. This is addressed further in the chronology in section 4.2;

(c)    A complaint lodged by Mr Salama against Mr New concerning Mr New’s letter of 4 November 2016;

(d)    A complaint lodged by Mr Salama against Ms Sweeting on 4 November 2016 alleging bullying and harassment of him at the Robertson 3 November 2016 meeting; and

(e)    A complaint lodged on 11 May 2017 by Ms Francisco at the request of Mr Salama complaining about the conduct of Mr Keech for failing to follow procedure in the context of the uniform reimbursement dispute, which was dismissed on the basis that no breach of policy or procedure was found to have occurred.

75    Mr Gillies was not cross-examined.

3.    THE RELEVANT LAW

3.1    Legislative framework

76    Chapter 3 of the FW Act sets out rights and responsibilities of national system employers and employees. Part 3-1 of Chapter 3, in which ss 334 to 378 fall, provides general workplace protections of workplace rights, freedom of association and involvement in lawful industrial activities and other protections: FW Act s 6(2).

77    It is not in dispute that Mr Salama, as an employee of Sydney Trains, was a national system employee for the purposes of the FW Act, who additionally was covered by an applicable workplace instrument, namely, the Enterprise Agreement: FW Act s 12. Therefore, the protections in Part 3-1 of the FW Act apply to him.

78    Section 340(1) of the FW Act relevantly provides:

340    Protection

(1)     A person must not take adverse action against another person:

(a)     because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)     to prevent the exercise of a workplace right by the other person.

79    Section 340(1)(a) relevantly contains two key elements. The first is that a person does something that comprises “adverse action” against another person. The second is that the adverse action is taken “because” the other person has a workplace right, or has or has not exercised a workplace right, or proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.

80    For the purposes of s 340, “workplace right” is defined in s 341(1):

Meaning of workplace right

(1)     A person has a workplace right if the person:

(a)     is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)     is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)     is able to make a complaint or inquiry:

(i)     to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)     if the person is an employee—in relation to his or her employment.

81    Section 341(2) relevantly deems the following to be a “process or proceedings under a workplace law or workplace instrument”:

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)    a conference conducted or hearing held by the FWC;

…

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)    any other process or proceedings under a workplace law or workplace instrument.

82    Section 342(1) sets out in tabular form circumstances where a person is taken to have engaged in adverse action against another. Item 1 includes within the definition of adverse action the circumstance where an employer dismisses the employee or injures the employee in his or her employment, alters the position of the employee to their prejudice or discriminates between employees. It also includes, by operation of s 342(2), threatening to do one of those things. The reference to “injuring” means causing an injury of a compensable kind, and the reference to altering the position of the employee to their prejudice includes any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 at [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).

83    Section 346 provides:

A person must not take adverse action against another person because the other person:

(a)    is or is not, or was or was not, an officer or member of an industrial association; or

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

84    For the purposes of s 346, s 347(a) relevantly defines “industrial activity”:

A person engages in industrial activity if the person:

(a)    becomes or does not become, or remains or ceases to be, an officer or member of an industrial association…

85    Section 361(1) reverses the normal onus in civil proceedings. It provides:

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

3.2    Ascertaining whether adverse action was taken for a proscribed purpose

86    Determining whether adverse action has been taken “because” a person, relevantly, had or had exercised a workplace right, or was an officer or member of an industrial association, requires a determination of fact as to the reason or reasons the adverse action was taken. In that regard, s 360 provides that for the purposes of Part 3-1, in which ss 340 and 346(1) are located, “a person takes action for a particular reason if the reasons for the action include that reason”. Therefore, if the court is satisfied that the adverse action was taken for a prohibited reason, or reasons that included a prohibited reason, this will be sufficient to establish a breach.

87    The High Court considered the causal requirements for adverse action, as established by this statutory scheme, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 and Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243.

88    In Construction Forestry Mining and Energy union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046, Wigney J helpfully synthesised the key principles relevant to this factual enquiry, which I set out below:

296    One might be forgiven for thinking, at least at first blush, that the question whether a person took certain action for a particular prohibited reason is a fairly straightforward question. It is, however, a question which, in the context of s 340 and cognate provisions (for example s 346 of the Fair Work Act), has excited some considerable debate and controversy. Following the decisions of the High Court in Barclay and BHP Coal, however, it could now be said that the relevant principles are relatively well-settled. The key principles, in simple terms, are as follows.

297    First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

298    Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

299    Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].

300    Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

301    Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].

302    Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

303    Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].

89    The mere fact that a person is a member of an industrial association does not insulate them from the proper sanctions flowing from misconduct: Barclay at [60] – [62] (French CJ and Crennan J); BHP Coal at [18] – [22] (French CJ and Kiefel J), [38] (Hayne J) and [88] – [93] (Gageler J). However, where conduct associated with the reasons for taking adverse action involves the exercise of workplace rights or industrial activity on the part of an employee, ascertaining whether or not a reason for the adverse action involves such rights may be more difficult. As much is clear from the dissenting reasons in BHP Coal: see [45] – [47] (Hayne J); [56], [63] and [67] (Crennan J).

90    In BHP Coal, French CJ and Kiefel J delivered separate reasons to Gageler J, but all agreed in the result. In that case, a member of the CFMEU engaged in a lawful activity organised by the union. During his participation in that activity, the member waved a placard that included the word “scab”. His employment was subsequently terminated. The decision-maker gave evidence at the trial concerning his reasons for dismissing the union member. The reasons included that the word “scab” was considered to be inappropriate, offensive, humiliating, harassing, intimidating and flagrantly in violation of the employer’s workplace conduct policy. The primary judge accepted that the mere fact that the member held certain positions in the CFMEU and had engaged in industrial activity did not play any part in the reasons of the decision-maker to terminate the member’s employment. Nevertheless, the primary judge found that the dismissal contravened s 346 because in waving the placard, the member was participating in a lawful activity organised by the CFMEU. The Full Court allowed an appeal from the judgment of the primary judge. The majority in the High Court upheld the decision of the Full Court.

91    Chief Justice French and Kiefel J found that it was wrong to infer that, if adverse action is connected to industrial activity, the industrial activity must be taken to be a reason for the adverse action: BHP Coal at [15]. As French CJ and Kiefel J explained at [19]:

Section 346 does not direct a court to inquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.

92    Similarly, Gageler J noted at [89]:

In a case where the totality of the operative and immediate reasons for one person having taken adverse action against another person are proved, the question presented by s 346(b) is whether any one or more of those reasons answers the description of the other person having engaged in any one or more of the industrial activities listed in s 347(a) or (b). The specific question presented by s 346(b) in its application to s 347(b)(iii) is whether any one or more of those reasons was that the person had, or had not, encouraged or participated in some lawful activity organised or promoted by an industrial association. The specific question presented by s 346(b) in its application to s 347(b)(v) is whether any one or more of those reasons was that the person had, or had not, represented or advanced some view, claim or interest of an industrial association.

93    This reasoning provides guidance as to the correct approach. It is, first, appropriate to consider the pleaded adverse action and the alleged proscribed reason(s) by which it is said to have been motivated. Next, one considers the reasons offered, if any, of the decision-maker(s) to ascertain what they contend motivated the decision. Then, having regard to all of the relevant evidence including the credibility of the reasons offered, it is necessary to examine those reasons against the asserted protected rights to determine, as a matter of fact, whether the alleged prohibited reasons was a substantial and operative, or operative or immediate, reason the adverse action was taken. Mere association between the adverse action and a protected right is not sufficient to establish a breach. As Gageler J found in BHP Coal at [90]:

…the totality of the operative and immediate reasons for BHP Coal having taken adverse action against Mr Doevendans were proved by the evidence of Mr Brick about his own process of reasoning. The fact that Mr Doevendans held and waived the signs while participating in the protest organised by the CFMEU was not an operative part of Mr Brick’s reasoning. Nor was the fact that the signs represented or advanced the views or interests of the CFMEU.

94    His Honour went on:

91    The CFMEU argues that the consequence of allowing the decision of the Full Court in the present case to stand will be to undermine the statutory protection afforded to protected industrial activity by allowing an employer to escape culpability by choosing to apply its own characterisation to otherwise protected industrial activity.

92    Part of the answer to that argument lies in recognition of the nature of the protection that is afforded to protected industrial activity through the operation of s 346(b). The protection afforded by s 346(b) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity.

93    Another part of the answer lies in recognition of the significance of the combined operation of ss 360 and 361. An employer could not escape the proscription in s 346(b) merely by proving that the employer applied its own characterisation to an act or omission having the character of a protected industrial activity. The employer would need, in addition, to prove that the act or omission having the character of a protected industrial activity played no operative part in its decision.

95    In De Martin, Wigney J noted that one can readily comprehend the distinction drawn by Gageler J between taking adverse action by reason of a person engaging in conduct that has the character of protected industrial activity, and taking adverse action by reason that that conduct has the character of protected industrial activity, having regard to the particular facts of BHP Coal. In BHP Coal, the trial judge accepted the decision-maker’s evidence that he did not dismiss the employee because he had engaged in conduct that had the character of protected industrial activity. He did not dismiss the employee because he was engaged in the protest. He dismissed the employee because the placard he was waving was offensive and contrary to company workplace policy. While that conduct happened to occur in the context of protected industrial activity, that was not the reason for the dismissal. His Honour went on:

307    The distinction drawn by Gageler J is potentially important to the resolution of the issue concerning the decision-maker’s reasons in this matter. BHP Coal concerned an alleged contravention [of] s 346 of the Fair Work Act. While it might be thought to be a very fine and highly nuanced distinction, if Gageler J’s distinction is applied to s 340 of the Fair Work Act, it would follow that the protection afforded by s 340 is not protection against adverse action by reason that an employee had, or exercised, a right that happened to have the character of a workplace right. It is a protection against adverse action being taken by reason of the fact that the right possessed by the employee had the character of a workplace right.

308    By the same token, an employer could not escape the proscription in s 340(1) merely by proving that the employer applied its own characterisation to a right having the character of a workplace right. The employer would need, in addition, to prove that the right having the character of a workplace right played no operative part in its decision.

96    The enquiry is one resolutely directed towards the reasons of the decision-maker for the adverse action, rather than the question of whether those reasons can be objectively justified. This point is starkly illustrated on the facts of Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265 (Collier J). In that case, Collier J accepted that the only operative and immediate reason for the employee’s dismissal was that his employer believed that he was dishonest in claiming to be sick and taking sick leave. In fact, her Honour found that the belief that the employee was dishonest was objectively wrong, because the employee was genuinely sick. Nevertheless, her Honour found that the employee was not dismissed because he had exercised a workplace entitlement (to take sick leave) and s 340(1) was not contravened. This was upheld on appeal: see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; 238 FCR 273 at [133] – [135] (Rangiah J) and [37] (Jessup J).

97    Of course, it is necessary to consider the pleaded workplace rights at the outset of the enquiry. By operation of s 361, it is those rights which are presumed to be the reason, or a reason, for the adverse action, unless the respondent employer proves otherwise.

3.3    Ascertaining whether a person is exercising workplace rights

98    A legal issue arises as to whether or not the rights asserted by Mr Salama are properly characterised as workplace rights within s 341(1) of the FW Act.

99    In Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 242 IR 1 (Shea (No 6)), Dodds-Streeton J said:

29    …in the context of s 341(1)(c)(ii) of the Act:

(a)    a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b)    the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c)    the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose;

(d)    the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii);

(e)    a complaint may be made not only to an external authority or party with the power to enforce or require compliance or redress, but may be made to persons including an employer, or to an investigator appointed by the employer;

(f)    a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise; and

(g)    a complaint is limited to a grievance, finding of fault or accusation that satisfies the criteria in s 341(1)(c)(ii) and does not extend to other grievances merely because they are communicated contemporaneously or in association with the complaint. Nor does a complaint comprehend contemporaneous or associated conduct which is beyond what is reasonable for the communication of the grievance or accusation.

100    In developing the point, her Honour said:

619     The relevant object of the provision is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment, rather than to protect employees who have proved, or are able to prove, that the grievance or accusation is justified or meritorious. Were it otherwise, the protection afforded by the provision would be largely illusory, as persons would be vulnerable to retribution for making a complaint unless, and perhaps until, their case could subsequently, by some unspecified means, be proved or found valid.

620     It does not follow, however, that the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees constitutes the making of a complaint that an employee is able to make in relation to his or her employment, and thus invokes the statutory prohibition on adverse action.

621     While the factual basis of a complaint need not be “true” or capable of ultimate substantiation, in my view, the grievance must at least be genuinely held and, where it takes the form of an accusation of fault, the complainant must believe it to be valid. There would otherwise be no real, but merely a spurious, grievance. The exercise of the workplace right constituted by the making of a complaint is not within the scope of statutory protection if it is made without good faith or for an ulterior purpose, extraneous to that for which the statutory protection was conferred.

622     The protection conferred by the provision is directed at workplace rights. When the relevant workplace right is the employee’s ability to make a complaint in relation to his or her employment, to make a complaint not in order to communicate the stated grievance or accusation so that it may be appropriately considered and redressed, but to achieve some collateral advantage or objective, would not, in my opinion, invoke the statutory protection. No legitimate statutory objective would be achieved.

623     Accordingly, in my view, the complainant must hold a genuine belief in the truth of the matters communicated as a grievance or accusation. In the absence of such a belief (which may be difficult, albeit not impossible, to establish in the absence of some reasonable basis) the complaint would not be a genuine grievance or finding of fault.

624     Further, the grievance or accusation must be communicated for a proper statutory purpose, which would, at least, entail giving the employer notice of the relevant matters or securing information, protection, redress or some other appropriate response.

625    In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

101    On appeal, the Full Court did not have to review this reasoning, although it expressed the need for caution in implying such qualifications: Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; 242 IR 159 (Rares, Flick and Jagot JJ) at [12] – [13]. In PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 the Full Court recently endorsed the proposition set out in Shea (No 6) that a complaint for the purposes of s 341(1)(c)(ii) must be underpinned by legislative provisions, contractual terms or the general law (at [16] (Rangiah and Charlesworth JJ)), and also must be made in good faith and for a proper purpose (at [26] (Rangiah and Charlesworth JJ) and [137] (Snaden J)).

102    More recently, however, in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, Bromberg J (with whom Mortimer J agreed), whilst expressing general agreement with many of the principles arising from Shea (No 6) in relation to what constitutes a complaint within the meaning of s 341(1)(c), took issue with the proposition expressed at [625] of Shea (No 6) and the reasoning in Pia Mortgage which endorses it. His Honour rejected the proposition that only complaints sourced in some right or entitlement held by the employee are protected under s 341(1)(c)(ii). In this respect, his Honour considered that the Full Court in PIA Mortgage was plainly wrong to read such a limitation into s 341(1)(c)(ii), and indicated that had it been necessary to do so to decide the case in Cummins, he would have declined to follow it. These observations were, however, obiter dicta and to the extent relevant in the present case, it is apparent that I am bound to follow PIA Mortgage.

103    An ancillary issue arises from the submissions as to whether workplace rights under s 341(1)(a) and 341(1)(b), in addition to those defined under s 341(1)(c), need be exercised in good faith and for a proper purpose. This question can be restated, broadly, as whether the reasoning in Shea (No 6), insofar as it relates to the requirement that complaints or inquiries must be made in good faith and for a proper purpose, should be extended beyond s 341(1)(c)(ii) to equally apply to workplace rights exercised or held pursuant to ss 341(1)(a) and 341(1)(b).

104    Mr Salama interprets Sydney Trains’ submissions as suggesting such a construction and submits that Shea (No 6) should be confined in its application to s 341(1)(c)(ii). However, Sydney Trains’ position on this legal issue is more nuanced. It does not contend that a requirement of genuineness or legitimate purpose is to be implied into the statutory language of ss 341(1)(a) or 341(1)(b). Rather, it submits that in relation to whether: (1) under s 341(1)(a), a person is entitled to the benefit of or has a role or responsibility under a workplace law or workplace instrument; or (2) under s 341(1)(b), is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument, will depend on the proper construction of the relevant workplace instrument or workplace law. As noted in section 5.3 below, it is Sydney Trains’ case that, according to the proper construction of the Enterprise Agreement, a “dispute” instigated under cl 8 of the Enterprise Agreement does not include a dispute that was not instituted bona fide and for a proper purpose. It submits that Mr Salama did not initiate any of the pleaded disputes for a proper purpose and, accordingly, Sydney Trains submits he was not entitled to the benefit of, or able to initiate or participate in, the process under cl 8. Sydney Trains makes a similar submission with respect to the stop bullying proceedings. In this connection, it submits that on the proper construction of the FW Act, the relevant workplace law said to enable Mr Salama to commence the stop bullying proceedings, Mr Salama held no such legal right or entitlement. In this regard it submits, drawing on the language in Shea (No 6) at [630], that an employee cannot make “mischievous, baseless and damaging accusations of misconduct in the workplace” or do so in an “abusive or threatening manner”.

105    Given that Sydney Trains’ case is centred on the proper construction of the Enterprise Agreement and the provisions of the FW Act relevant to Mr Salama’s ability to commence the stop bullying proceedings, and not the statutory language of ss 341(1)(a) or 341(1)(b), it is unnecessary for me to determine whether a requirement of good faith and proper purpose should be read into those sections. I address the proper construction of the Enterprise Agreement in section 5 below.

4.    FINDINGS OF FACT AND CHRONOLOGY OF EVENTS

106    Set out below are findings of fact based on the affidavit evidence and documents which are relevant to the issues in dispute. It is arranged in loosely chronological order. Headings have been inserted to provide guidance as to particular subjects although it may be noted that factual issues tend to overlap and that, accordingly, the headings provide guidance for ease of reading, rather than a definitive statement as to the relevance of the material referred to.

4.1    Mid-2016

107    At the beginning of 2016, Mr Salama and Mr Keech each applied to “act up” in the position of TTM. At the time, Mr Keech was a Senior Transport Officer and was Mr Salama’s direct manager. Mr Keech was selected and commenced acting up in the role off TTM shortly thereafter in 2016.

108    On 12 July 2016, as acting TTM, Mr Keech conducted a bi-monthly “Performance Development Plan” (PDP) assessment regarding Mr Salama’s performance as a Transport Officer. Mr Keech rated Mr Salama’s performance as a “3” in that PDP, and Mr Salama refused to sign it as he did not agree with the rating.

109    On 27 July 2016, Ms McKendry arranged and attended a meeting with Mr Salama, Mr Spicer and Mr Skundric to discuss issues that had arisen due to a proposal that the team change their start location. During this meeting, Mr Salama told Ms McKendry that he had lost confidence in Mr Keech.

110    On 19 August 2016, Mr Salama emailed Ms McKendry, other members of the team (including Mr Keech) and the WCIU, outlining nine issues that he considered had been raised at the 27 July 2016 meeting in relation to Mr Keech’s conduct as acting TTM (First Keech complaint). The allegations against Mr Keech included that he had bullied and harassed Mr Salama, that he was trying to change previously made work arrangements, and that he was giving Mr Salama “3s” in his PDPs rather than “4s” like he had received previously. Mr Salama expressed disappointment that no feedback had been given to him or other members of the team in relation to the meeting, and that Mr Keech was still acting as TTM. He asked Ms McKendry to provide him in writing an outcome in relation to each of the nine points.

111    In response to Mr Salama’s email of 19 August 2016, Ms McKendry arranged and attended a meeting on 26 August 2016 with Mr Salama, Mr Skundric and TTMs Mr Kane and Peter Murray, the latter two acting as her support persons. Ms McKendry’s file note of the meeting records that four of the nine issues raised in the First Keech complaint were addressed. Ms McKendry explained to Mr Salama that Mr Keech was his supervisor and would make decisions as to how to run the team, and changing the starting location of a shift did not qualify as bullying and harassment. In relation to Mr Salama receiving “3s” in his PDPs, Ms McKendry acknowledged that Mr Salama disagreed with those ratings but stated that Mr Keech had followed the correct rating scale.

112    On 31 August 2016, Ms McKendry, Mr Salama, Mr Skundric, Mr Kane and Mr Keech attended a meeting to discuss the remaining issues raised in the First Keech complaint. The meeting was scheduled for one hour but went for four and a half hours. Ms McKendry gives evidence that Mr Salama continually challenged and argued with her responses to each of the issues he had raised. After discussing the balance of the points, Ms McKendry’s file note of the meeting records that Mr Salama stated he would not work with Mr Keech until he had proven that he would change. Ms McKendry gives evidence that some of the resolutions reached involving Mr Salama reporting to her rather than Mr Keech were not within the usual chain of command process, but were implemented so that the issues could be resolved. Mr Salama accepts that during this meeting he stated words to the effect that Mr Keech was “incompetent and would not pass probation with his current work performance”. Following this meeting, Mr Salama was temporarily re-assigned to another team.

113    On 8 September 2016, Mr Salama emailed Ms McKendry and the WCIU. This email included reference to the same nine issues as in the First Keech complaint, as well as further commentary on those issues by Mr Salama, Mr Spicer and Mr Robertson. Included under the “bullying and harassing” heading is an excerpt of an email dated 26 July 2016 from Mr Keech to Mr Salama and the other members of the team, in which Mr Keech proposes that the team should consider whether they should start their shifts at Penrith rather than Blacktown. Mr Keech asks the team to let him know what they think, and notes that they will vote as a team before any changes are made.

114    In response to the First Keech complaint and the further email from Mr Salama on 8 September 2016, the WCIU commenced an investigation into the matter. That investigation made the following finding:

There are no grounds to warrant further WCIU inquiries into this complaint. The concerns raised by Mr Salama relate to operational matters which can be, and for the most part have been, addressed at the local management level.

115    On 19 September 2016, this finding was communicated in a letter from Mr Gillies to Mr Salama. In that letter Mr Gillies reminded Mr Salama of his confidentiality obligations and stated that the outcome of the investigation was to remain confidential. On 21 September 2017, Mr Salama sent an email to Mr Gillies, copying in others, with the following words included:

I am not satisfied with managements [sic] handling of the investigation and I am now formally escalating the matter to your team for an “independent” investigation.

4.2    Mr Salama’s attempts to procure a vote of no confidence in Mr Keech

116    On 13 September 2016, Mr Keech made a complaint to Mr New about Mr Salama’s conduct which alleged that Mr Salama had harassed Mr Keech and attacked his reputation by contacting colleagues within their team to rally support against Mr Keech in an attempt to force a “no confidence vote” on Mr Keech’s leadership of the team. An investigation was then conducted by the WCIU.

117    On 14 September 2016, Mr New sent an email to Yvette Mihelic, his direct supervisor at the time, that formalised his concerns in regard to Mr Salama’s behaviour and actions. In it, he referred to and attached statements from other members of the team who had received messages and telephone calls from Mr Salama on 2 September 2016, in which he questioned Mr Keech’s leadership and enquired as to whether they would support a no confidence vote.

118    On 16 September 2016, Mr Gillies informed Mr Salama that the WCIU had received a complaint about Mr Salama’s conduct.

119    The WCIU commenced an investigation into the complaint and made the following finding on 11 November 2016:

There is insufficient evidence to substantiate allegations of bullying and harassment and it is recommended that the matter not proceed to a formal investigation and it is referred back to the business for local management action.

120    One of the conclusions reached by the WCIU was:

The behaviour of both Mr Salama and Mr Spicer is however, considered unreasonable and as such it is recommended that remedial action be taken at a local management level.

121    As noted below at [130], on 16 November 2016, Mr New sent Mr Salama a letter expressing concern about his behaviour in relation to this incident.

122    On or around 13 September 2016, Mr Keech became Acting Team Manager for a temporary period whilst Ms McKendry was on leave.

123    On 14 September 2016, Mr Salama sent the following email to Mr New, copying in others:

I have been informed that it is managements [sic] intention to act Charlie Keech up next week into a Team Managers role. In light of the current investigation below, I suggest that this decision is rather inappropriate considering the overwhelming evidence brought forward and the fact that it is being investigated by WC&IU as per your suggestion. I would also strongly suggest that this decision be reconsidered as it may be viewed as one of a corrupt nature and would then leave me no choice but to refer the matter to ICAC.

Please respond as to your decision within 24 hours, thank you.

4.3    The November meeting with Mr Robertson

124    On 22 September 2016, Mr Salama attended a meeting with Mr Robertson, the purpose of which was to discuss Mr Robertson’s frequent absences from work. In a file note dated 23 September 2016, Daniel Shields (an acting business operations lead in the FCU at the time), who attended the meeting with Ms Sweeting (a Human Resources business partner at Sydney Trains), records that Mr Salama was “quite disruptive throughout the meeting, speaking on [Mr Robertson’s] behalf and thus failing in his responsibilities as a support person”. The file note also states “[Mr Salama] was insistent that to date no one had established that [Mr Robertson’s] 94 absences constitutes unacceptable attendance, continually asking [Ms Sweeting] and myself why we were having a Step 2 discussion”. The meeting was then called to an end and Mr Robertson was advised that he would be required to attend a further meeting to explain his circumstances. I accept this note as an accurate record of the meeting.

125    In her affidavit, Mr McKendry incorrectly deposes to attending the 22 September 2016 meeting, a matter that she corrected in her oral evidence in chief. She gives evidence that on 3 November 2016 a further meeting was held which she did attend, together with Ms Sweeting as her support person (the Robertson 3 November 2016 meeting). Mr Salama and Mr Robertson also attended.

126    There is a dispute as to whether Mr Salama attended the meeting in a capacity as a union delegate or as a support person, to which I refer in more detail in section 5.2.1 below. Mr Salama submits that he attended not only as a “support person” but also in the role of a union delegate and employee representative able to make representations on behalf of Mr Robertson. Ms McKendry considered that his role was confined to support person, which meant that Mr Salama could not make submissions. As a result of this disagreement, Ms Sweeting directed that Mr Salama not advocate on behalf of Mr Robertson. After Mr Robertson indicated that he would not be speaking on his own behalf, the meeting was terminated by Ms Sweeting.

127    In a letter dated 4 November 2016, Mr New wrote to Mr Salama regarding his behaviour during the Robertson 3 November 2016 meeting. He gives evidence that he drafted this letter after speaking with Ms McKendry and Ms Sweeting. The letter included the following:

During this meeting you were to act in the capacity of support person…

I note that during this meeting you interrupted and insisted on speaking for Mr Robertson, even after being reminded of your obligations as a support person, to the degree that it left Ms McKendry and Ms Sweeting no option than to end the meeting within 5 minutes of commencement without the objective of the meeting being discussed.

To clarify the role of the support person, I refer you to Sydney Trains policy 4. – Policy: Employee Performance and Development being:

…

The support person:

•    may be a friend, relative, work colleague, legal representative, union delegate or union official

…

•    is an observer and is not to act as an advocate

…

Failure to comply with the above policy is a serious matter along with your inappropriate behaviour and is considered a breach of the Code of Conduct…

128    There is a dispute between Mr Salama and Ms McKendry as to whether or not Mr Salama did in fact interrupt during the course of the meeting. However, there is no doubt, and I find, that Mr Robertson insisted that Mr Salama advocate on his behalf during the meeting. I address questions as to whether Mr Salama had a workplace right to act as an advocate at the Robertson 3 November 2016 meeting in further detail in section 5.2.1 below.

129    On 14 November 2016, Mr Salama made a complaint to the WCIU concerning alleged “maladministration” by Mr New with respect to the letter dated 4 November 2016. Mr Salama stated that Mr New had not asked him for his version of events following the meeting, and he denied speaking on behalf of Mr Robertson or being reminded of his obligations as a support person.

130    On 16 November 2016, following the WCIU’s finding with respect to Mr Keech’s complaint about Mr Salama (referred to in section 4.2), Mr New sent Mr Salama a letter addressing the results of the WCIU investigation. The letter included excerpts from the “Transport Prevention and Management of Bullying and Harassment Policy” and the “Transport for NSW Code of Conduct”. It also included the following statements:

The matter was referred to the Workplace Conduct and Investigations unit for initial assessment and a [sic] while your actions do not constitute bullying as specifically defined in the above policy, your behaviour was considered as unreasonable and a recommendation [was] received that you be counselled in relation to the incident.

…

Should you fail to adhere to the above policy requirements further action will be initiated which may include referring you for disciplinary action which may result in dismissal.

131    On 18 November 2016, Mr Salama sent a further email to the WCIU, referring to Mr New’s letter of 16 November 2016 and stating that he again considered Mr New’s letter to amount to “maladministration, intimidation and adverse action”.

132    On 29 November 2016, Wayne Powell from the WCIU emailed Mr Salama and informed him that Mr New’s letter of 16 November 2016 was based on a recommendation to Mr New by the WCIU. Plainly, he considered that it did not warrant investigation.

4.4    The November 2016 mediation

133    On 18 November 2016, Mr Salama attended a mediation with Mr Keech, Mr Spicer, Mr Robertson arranged by Sally Hole, the General Manager, People at Sydney Trains.

4.5    January 2017

134    On 6 January 2017, Ms Francisco sent an email to Mr Salama inviting him to a follow-up meeting to the 18 November 2016 mediation. Ms Francisco understood that Ms Hole then conducted one-on-one meetings with Mr Salama, Mr Keech, Mr Robertson and Mr Spicer.

135    At 2.13pm on 9 January 2017, Mr Salama emailed Ms Francisco, copying in others, regarding the procedure involved when a Transport Officer acts up as a Senior Transport Officer, and asking her to send him an invitation to a planned meeting to discuss the topic. After sending Mr Salama an invitation, Mr Salama emailed Ms Francisco again at 2.27pm, stating that he would be “expecting a response to ALL questions raised in the previous email”.

136    At 6.12pm on 11 January 2017, Mr Salama sent another email to Ms Francisco, copying in the same people as well as Mr Walsh, stating:

It has been more than 48 hours since I have requested a response to my questions in previous emails. To date, I have received no response. Please be aware that ignoring emails is a breach of the code of conduct and as such would once again kindly request a response at your earliest convenience, thank you.

137    On 12 January 2017, Ms Franscisco replied to Mr Salama and addressed his previous questions, including informing him that she was not required to copy in multiple people when responding to him.

138    At 4.03pm on 30 January 2017, Ms Francisco emailed 20 people, including Mr Salama, to advise of a roster change for a 8 February 2017 shift. Mr Salama replied at 4.39pm, copying in the same recipients, with the following:

Could you please advise why the required 72 hour notice period has not been provided as required. Please also be advised that as the required notification period was not adhered to, it is the individuals [sic] right to decline the request of a change to their start time. However, should they agree to the change, they are also able to do so.

As the change in my start time also affects my earning capacity, I will only be agreeing to the change in start time if I can get an assurance that I will still get paid master roster for the day, thank you.

139    Ms Franciso replied to Mr Salama at 4.48pm on the same day, noting that more than seven days of notice had been given as the proposed roster change was for 8 February 2017. Mr Salama replied to that email by stating “please disregard my previous email, as I have just noticed the date is for Wednesday week and not this Wednesday”.

4.6    February 2017

140    On 3 February 2017, Ms Francisco and Mr Salama exchanged a number of emails regarding whether or not Mr Salama needed to sign his timesheet in circumstances where he was disputing how much he should have been paid for his shift on Australia Day. At the beginning of this exchange Mr Salama began by copying in Mr Skundric, Mr Robertson and Mr Spicer, among others. During this exchange, Mr Salama sent the following email to Ms Francisco on 3 February 2017 at 1.29pm, and copied in Mr Walsh and Mr New as well:

I would assume that someone in your position would be fully aware that there is no requirement for me to sign my timesheet. As such, for the reason I have already mentioned, I will not be signing my timesheet.

141    At 9.05am on 7 February 2017 Ms Francisco replied to Mr Salama individually, and noted the following:

…I find the tone of your email condescending in nature, particularly with the numerous people you have copied in to this discussion. In future, could you please ensure that emails are appropriate.

142    At 9.18am that day, Mr Salama replied to Ms Francisco by continuing to dispute that he needed to sign his timesheet. He again copied in Mr Walsh, Mr New and others.

143    On 9 February 2017, Ms Hole sent Mr Salama a letter to confirm the contents of their discussion in January 2017. This letter included the following:

Maintaining a work environment where all people are able to work effectively together and one that is safe and free of bullying or harassment or victimisation is critically important to Sydney Trains. In this, it is reasonable for Sydney Trains to expect that each employee will comply with our Code of Conduct and co-operate with each other to work effectively and achieve safety in the workplace.

I expect that all employees are able to:-

•    maintain suitable interpersonal skills and communication that enables and allows for effective, fair and respectful working relationships, regardless of any view they may have about an individual employee

•    work on and within a small work group/team to meet operational requirements

•    constructively raise suggestions or questions to clarify any instructions and/or to highlight any areas of concern or procedural or safety matters

•    detail and specify any safety concerns such that appropriate assessments can be undertaken and/or decisions made

•    respond as is reasonable to safety matters or concerns raised and where necessary offer explanations on actions or decisions taken

•    be able to listen to and follow reasonable instructions issued by those in supervisory or management potions [sic, positions]

•    constructively receive feedback on work performance and participate in/attend performance review meetings

•    work under instruction and as reasonably directed by relevant supervisors/managers.

144    On 8 and 9 February 2017, Ms Francisco and Mr Salama exchanged a series of emails regarding changes to Mr Salama’s upcoming shift on 16 February 2016 to allow him to attend a conciliation at the Fair Work Commission in an anti-bullying application filed by his colleague Mr Robertson. Ms Francisco agreed to Mr Salama’s request to have his start and finish times changed, as well as to start his shift at a different train station. However, Ms Francisco informed Mr Salama that he was unable to “sign off in the field” but would instead be signing off at Redfern station.

145    At 6.33pm on 9 February 2017 Mr Salama sent an email to Ms Francisco requesting that she reconsider her decision as to where Mr Salama would be ending his shift.

146    At 2.55pm on 10 February 2017 Mr Salama sent Ms Francisco a further email, this time also copying in Mr Walsh:

It is disappointing that you had no opportunity all day to respond to the below request. I understand that you are now on Annual Leave for the next 4 weeks and heading to Thailand. Have a safe, fun and memorable time whilst you are on leave.

In regards to my request below, I will now be following up with Matty on Monday.

147    Later that day at 4.48pm Ms Francisco replied to Mr Salama’s email, responding to his query and stating the following:

Apologies for not responding today, as a manager, the last day before leave can be challenging with competing priorities. I had however made arrangements with Matt to facilitate a field finish for you before I left…

As a side note, it’s inappropriate to copy in parties that are not involved in these arrangements. I have previously reminded you about appropriate communication. On my return from leave I will facilitate a discussion for us to better understand each other and the boundaries for us when communicating by email.

4.7    April 2017

148    On 10 April 2017, Mr Walsh emailed Mr Salama and Mr Skundric, requesting that they cease emailing him directly due to the large volumes of emails he was receiving with respect to different union disputes. Mr Walsh gives evidence that in the period January 2017 to March 2017, he received approximately 478 emails from Mr Salama and other union delegates.

149    On 19 April 2017, Mr Salama emailed Ms Francisco addressing, among other things, whether his hours would be changed for an upcoming shift on 27 April 2017 due to his attendance at a consultative meeting with management on that day. Ms Francisco gives evidence that she missed this aspect of Mr Salama’s email and so did not respond.

150    On 26 April 2017 Mr Salama forwarded that email to Mr New and Mr Shields, copying in Ms Streimer, RTBU organiser Graham Fozzard, and union delegates Mr Skundric and Nicky Lee, stating:

I have not received any response to the email below. Please confirm that I will be paid overtime for my extra hours to attend today’s LCC, thank you.

151    Mr Shields forwarded that email to Ms Francisco, who in turn called Mr Salama. A file note of that conversation records that Ms Francisco advised Mr Salama that it was unnecessary for him to have sent that email to Mr New and the others, and that it would be more appropriate for Mr Salama to have a discussion with her directly as she receives over 100 emails a day.

4.8    The uniform reimbursement dispute

152    In the period from 5 to 8 May 2017, Ms Francisco was rostered off work and Mr Keech acted in her role as TTM. During this period, a dispute arose between Mr Salama and Mr Keech as to which of them was required to forward Mr Salama’s reimbursement form, for $28.00 for uniform alterations, to payroll (the uniform reimbursement dispute). Mr Keech believed that after he had approved the reimbursement, it was Mr Salama’s responsibility to forward the approved form, whereas Mr Salama thought it was Mr Keech’s responsibility. Despite this, on 8 May 2017, Mr Keech agreed that Mr Salama could put the completed form on his desk. After Mr Salama did this and finished work, Mr Keech noticed that Mr Salama had not written in his payroll officer’s name on the form, and placed it back in Mr Salama’s pigeon hole and advised him via text message that he needed to fill in that detail. At 3.34pm that same day, Mr Salama emailed Mr New and Mr Shields, recording his in-person conversations and text messages exchanged with Mr Keech, and included the following:

I would like to raise a grievance against Charlie Keech…

[Details of conversations and text messages are extracted].

…To which I had then attempted to contact him by both text and phone to which he ignored. (I am of the understanding that TTM's are meant to be contactable outside of business hours and his phone was turned on as it rang out to his MessageBank).

I would like to know the following;

1. How is it that Charlie seems to be the only acting TTM who does not know the correct procedure?

2. Why did he not simply use common sense and ask another TTM what the correct procedure is rather than insisting on his mistake?

3. Why did he wait until I had left the office to again ignore his duties by placing the forms back in my pigeon hole rather than calling me to give him my payroll officer's name?

4. Why did he ignore my text and phone call?

153    On 9 May 2017 at 6.17am Mr Salama forwarded that email to Mr Keech, Mr New and Mr Shields, copying in Ms Streimer, Mr Skundric and Ms Lee, and stated the following:

As requested, I have filled out my payroll officer's name on the form and have now placed it in your pigeon hole. I am aware that you are no longer acting as a TTM for my team, however, I trust that you will now follow up with completing your duties that I believe were neglected during your time as acting TTM as this will be a good start to resolving the below grievance that I raised.

Please confirm your willingness to do so, thank you.

154    On her return to work on 9 May 2017, Ms Francisco discussed the matter with Mr Keech and asked him to give her Mr Salama’s reimbursement form, which she submitted to payroll at 1.37pm. Ms Francisco gives evidence she did this as she hoped it would bring an end to the dispute, and did so despite considering it was Mr Salama’s responsibility to submit the form. At about 2.15pm, she had a discussion with Mr Salama in which she gave him a copy of the “Guidelines for completing Request for Payroll Reimbursement Form”. Ms Francisco pointed out to Mr Salama that the procedure made it clear that it was the employee, not the manager, who had the responsibility to submit the reimbursement form to the payroll team following approval. She also told Mr Salama that both his grievance and his email at 6.17am that morning were inappropriate. Ms Francisco gives evidence that this conversation took place in a quiet area, outside of earshot of any other employees.

155    Mr Salama gave evidence that during this conversation, he told Ms Francisco that a meeting was held with Mr Shields where changes were made to the standard operating procedures that applied to Mr Salama, and that it was agreed by everyone at that meeting that all paperwork was to be actioned by management. In cross-examination, Mr Salama referred to a “Local Agreement” document that stipulated that it was the manager’s responsibility to submit the reimbursement forms. His evidence was:

And on 5 May 2017, you emailed him asking him to approve a $28 reimbursement form?---Yes.

And that was with respect to uniform alterations?---Correct.

Now, Mr Keech did that in that he approved it on the same day for you, didn’t he?---Yes.

And you brought a complaint against him because you believed that he was your administrator and was required to give your form, once approved, to payroll?---That was the procedure. Yes.

That wasn’t actually the procedure, was it? You know that now?---No, that was the procedure.

You understand, under the policy that applied, the guidelines that applied with respect to this, that it was for you to give it to your payroll officer?---That’s incorrect.

Well, let me take you to the – you accept that there are guidelines?---There was a local agreement that overrode that.

I’m sorry. You’re talking all the time about local agreements?---Yes.

You had an obligation to comply with the guidelines that applied with respect to reimbursements; you accept that, don’t you?---Not if there’s a local agreement that supersedes it.

And there’s no – and there was no local agreement that superseded it?---There was.

Well, you’re aware that Ms Francisco holds the view that there was no local agreement?---Well, she’s incorrect.

Right.

HIS HONOUR: Mr Salama, could you explain to me what you understand a local agreement to be?---Between the unions and management through our consultative meetings, we raised issues and – and we come to certain agreements on how to resolve those issues.

And are those agreements written down?---Yes.

156    A call was made for the written local agreement. Mr Salama produced an irrelevant document entitled “SOP 8 Timekeeping, Rostering and Staff Movements”, effective much later, from 11 May 2018. In my view, this aspect of Mr Salama’s evidence reveals a propensity on his part to fabricate matters to suit the convenience of his own arguments. In oral evidence, Mr Salama sought to justify his conduct on the basis that he was trying to “set an example” as a union delegate in relation to the so-called agreed procedure, however, I consider that this is a convenient reconstruction of events and do not accept it. Whilst he declined to accept the proposition in cross-examination, I consider that the communications that Mr Salama sent to Mr New in raising the complaint were condescending and insulting to Mr Keech.

157    Following his discussion with Ms Francisco, at 3.04pm on 9 May 2017, Mr Salama sent a further email to Mr Keech, Mr New and Mr Shields, copying in Ms Streimer, Mr Skundric, Ms Lee and HR Advisory. It was critical of Mr Keech:

I am at a loss as to how someone who is considered by management to be suitable for an acting TTM can show such a lack of professionalism. To date, I have not received any response to any of my communication [sic] to you. I requested that you act in good faith regarding this issue, but instead you chose to hand the documents to Amba [Ms Francisco] to follow up with your duties. I believe that your pigeon hole is around the same distance from the admin staff as it to the TTM's office.

I consider your failure to respond to be an act of bullying and now request that management also investigate this lack of action on your behalf.

158    At 5.58pm later that day, Mr Keech sent the following email to Mr New:

I am truly disappointed in Joseph's continuing harassment on this matter.

I have clearly communicated with Joseph [Mr Salama] (and Amba [Ms Francisco]) in regards to actioning his request. Even after his Team Manager (Amba) talked him through his concerns, he still attacked me via email.

He is questioning my suitability and professionalism as a manager for no apparent reason. As per my below email to Joseph, I handed his document to Amba Francisco at her request. Amba had a conversation with Joseph about his responsibilities in regards to completeing and actioning administrative documents. After Amba had a conversation with Joseph, he then sends me an abrupt email questioning my actions.

I feel that Joseph is unfairly targeting me. This is not the first time that I have felt bullied and harrassed by Joseph. I would appreciate if you could please look into this matter as I feel that Joseph's behavior is aggressive and threatening, and is in breach of Sydney Train's Code of Conduct.

(errors in the original)

159    On 10 May 2017, Ms Francisco sent Mr Salama an email confirming their discussion the previous day, including the following:

As in our conversation, I found the lodgement of your grievance to be inappropriate and the further email you sent Charlie Keech stating that he neglected his duties to be highly inappropriate. We have discussed previously the need for appropriate communication.

Given that your form has now been completed, and I have confirmed the correct process with you, I would hope this will resolve your grievance.

160    At 9.18am on the same day Mr Salama replied to Ms Francisco, copying in Mr Shields, Mr Skundric, Ms Lee and HR Advisory:

I respectfully disagree with your view that my actions were inappropriate and I definitely expect the matter to be fully investigated as firstly I am still of the opion [sic] that it is the TTM's role to forward ANY documents to the appropriate channels. Secondly, Charlie's handling of the situation was, in my opinion, very poorly handled and his abilities and attitude towards me requires a fair and unbiased investigation.

161    At 4.08pm that day Mr Salama emailed Mr New and Mr Shields, copying in Mr Walsh:

It has now been more than 48 hours since I raised this grievance and have not received any response from either manager. Could I please get an indication as to when I should expect to receive a response, thank you.

Chris, I felt that I needed to copy you in due to the above situation.

162    At 5.04pm, Mr Shields replied to Mr Salama in the following terms:

This grievance was referred to your Team Manager Amba Francisco as it is an operational issue.

Tony [Mr New] and I are of the understanding that Amba discussed the matter with you both yesterday and today. In addition, Amba followed up today's conversation with an email confirming that the form has been sent to payroll on your behalf.

In your response today which I was copied into you have requested a fair and unbiased investigation. Accordingly, we have referred the matter to TfNSW Workplace Conduct and Performance Unit for their independent investigation.

Please refer all future correspondence on this matter to your Team Manager Amba Francisco.

163    Mr Salama persisted in his complaint. On 11 May 2017, Mr Salama sent a further email to Mr Shields, copying in others, which included the following:

I am at a loss as to how it would be deemed suitable for one TTM to deal with a matter regarding an acting TTM. I would have thought it more appropriate to go to the one up manager, which in this case was yourself and/or Tony.

The discussion with Amba (no offence Amba) consisted of Amba voicing her "disappointment" with me for submitting the grievance, advising that she has submitted the form on my behalf, handing me a 2015 document in regards to "Guidelines" for completing Request for Payroll Reimbursement form, then requesting me to withdraw my grievance. I fail to see how any of this constitutes dealing with the main issue of Charlie's attitude and unprofessional handling of the matter, resulting in breaches of the code of conduct. In fact, I was quite "disappointed" that I was asked to withdraw the grievance.

164    On 12 May 2017, Ms Francisco sent Mr Salama an email communicating the WCIU’s response to Mr Salama’s grievance, being:

…Following assessment, WCIU will not pursue further enquiries or investigations into this matter. Mr Keech appears to have acted reasonably at all times, and I note that the matter has now been fully resolved by the business.

4.9    The union rights dispute and the request issue

165    On 17 May 2017, Ms Francisco attended a PDP meeting with Mr Salama and Mr McClifty, the Senior Transport Officer to whom he reported. Ms Francisco understood that Mr McClifty wanted to give Mr Salama a “2” rating because he had not been meeting his “tickets checked” per hour target. Ms Francisco gives evidence that during that meeting, Mr Salama said words to the effect that his roles as a Health and Safety Representative (HSR), a union delegate, and an “ePins champion” required him to undertake additional duties of up to two hours per day, and that was impacting his ability to perform his duties as a Transport Officer. He argued that those additional duties meant that he should have a lower target than other Transport Officers. Ms Francisco replied in words to the following effect:

While you are on patrol, you must be patrolling. You can take calls and answer emails during down-time in between trains. If you require additional time to undertake your extra duties, please request it and I will assess each request and accommodate where feasible. However, your role is a Transport Officer, and I expect you to perform the requirements of that role first and foremost.

166    Ms Francisco gives evidence that Mr Salama replied by stating words to the effect of “it would help if management stopped breaching the Enterprise Agreement”. Ms Francisco informed him that that was a “highly inappropriate statement”.

167    Following this meeting, Ms Francisco sent an email to Mr Salama at 3.19pm, copying in Mr McClifty, in which she confirmed the details of their discussion and said:

As requested, I am writing to confirm my expectations as discussed today during your PDP conversation. During this discussion, you identified that being a HSR, Union Delegate and ePins champion requires you to perform additional tasks which is impacting your ability to perform your duties as a Transport Officer. You advised that these duties can take up to 2 hours out of a day.

To clarify, it is expected that while you are on patrol, that you are patrolling. To assist you, I advised that if you have some down-time in between trains it would be reasonable for you to address emails/phone calls during this time.

If you require additional time to complete these extra duties, please request it and I will assess each request and accommodate where feasible.

To further note, the comment you made in the meeting that “it would help if management stopped breaching the EA” I found to be a highly inappropriate, unsubstantiated allegation.

(emphasis added)

168    On 18 May 2017 at 11.55am, Mr Salama replied to Ms Francisco’s email of 3.19pm the previous day, copying in Mr Skundric, Ms Lee, Mr Fozzard, Hani Zraika, Julian Blaker, David Young, Jason Crook, James Thompson and Diane Horafios. Mr Salama said:

As indicated to you in our discussion referred to in your below email, your request appears to breach the EA2014, in particular the following clauses.

    [Mr Salama then extracted cls 38.1(a) and (c)(iv) and cl 38.2 (a)]

As such, I am now placing this matter in a step 1 dispute and request your response within 48 hours as per the DSP.

(emphasis added)

169    It is this email that commenced what is defined above as the union rights dispute. In the context of disputes under the DSP relied upon by Mr Salama in his claim under s 341(1)(b), it is also referred to as the request issue.

170    On 19 May 2017 at 7.24am Ms Francisco replied, requesting that Mr Salama provide specific detail as to how he alleged that Ms Francisco had acted in breach of the Enterprise Agreement.

171    Mr Salama replied at 11.20am on 19 May 2017, quoting the emphasised passage in Ms Francisco’s email of 17 May 2017 (reproduced above), and stating that it is unlikely that he would get any “down time” between trains. Mr Salama said:

I have also mentioned to you that I cannot judge the urgency of the call/email without taking the call or reading the email first. I already asses [sic] the individual situation and do respond at a more appropriate time when feasible. However, the vast majority of the time, the call/email needs to be addressed without delay.

Your email to me suggests that I should constantly seek your approval to fulfil my duties as a HSR/union Delegate. I believe that...[I] should not have to seek your approval each time I need to attend a HSR/Union matter.

The email concluded asking that Ms Francisco confirm her “acknowledgement of these rights to avert having the matter escalated to Step 2”.

172    On the same day at 2.32pm, Ms Francisco responded by email:

Sydney Trains is willing to support and accommodate other tasks outside your primary duties, however, while in the field and while patrolling, Transport Officer duties come first.

This is in line with section 38.2 of the Enterprise Agreement as outlined below;

[cls 38.2(a), (b) and (c) were then quoted]

Given that my expectations are clear and supported by the Enterprise Agreement, I now consider this dispute to be resolved.

173    A little later that day Mr Salama replied, complaining that Ms Francisco had not responded to his main question being “that I should constantly seek your approval to fulfill [sic] my duties as a HSR/Union Delegate”. He states that “[d]ue to the time restraints around the DSP, this email would be a prime example of having to respond asap”. The email concludes “[a]lso, please be advised that as I was the one to raise the dispute, I will be the one to close the dispute when I am satisfied that the matter has been fully resolved, thank you”. Later yet on that day, Mr Salama informed Ms Francisco that he was now “escalating the dispute to step 2”.

174    On 22 May 2017, Ms Francisco responded. On 23 May 2017 Mr Salama replied, stating “please remember your obligation to keep all parties informed and updated” and asked her to copy in the numerous people he copied into his email including, in addition to those people first copied, Ms Streimer and Mr New.

175    On 26 May 2017, Mr New emailed Mr Salama noting that a recent dispute has arisen as a result of a PDP discussion, where Mr Salama spoke about the demands of being a union delegate and a HSR and that Mr Salama had alleged a breach of cl 38 of the Enterprise Agreement. Mr New said that he had reviewed the concerns noted to Ms Francisco that Mr Salama had placed in dispute and said:

I acknowledge that as a Union delegate, your role is enshrined in the Enterprise Agreement and that reasonable time is allocated for you to perform the requirements of your role.

However, first and foremost, you have a responsibility to perform the requirements of a Transport Officer, which is the job you have been employed to do.

I also note that your requests for union duties have been granted even when minimal notice has been provided.

It is expected that if you need to be released, that a request is made with adequate notice for consideration subject to the operational requirements of the business and do not interfere with your primary duties as an employee.

Should you require reasonable additional time to attend to your union duties, you should request this time and it will be considered subject to the operational requirements of the business.

When you are on patrol, it is expected that you would be solely focused on performing your role in an efficient, effective and safe manner.

In addressing this dispute, I do not believe that there has been any breech [sic] of clause 38...as at no time have you been denied rights as [a] Union delegate.

...

176    On 29 May 2017, Mr Salama sent two emails in response to Mr New’s letter. In the first email, at 5.06am, he said that “this dispute has nothing to do with my PDP discussion…[i]t is my understanding that Amba used the opportunity to raise her concerns about my duties as a Union Delegate, HSR and E-Pins Champion while I was in the office”. I note, parenthetically, that this view is not borne out by the correspondence, which indicates that the direct cause of the dispute was Mr Salama’s contention that the additional time he spent on union responsibilities should be factored into his performance rating. Mr Salama also disputed Mr New’s comments, reiterating his complaint:

Your email suggests that I should constantly seek your approval to fulfill [sic] my duties as a HSR/Union Delegate. I...should not have to seek your approval each time I need to attend a HSR/Union matter.

This email was copied to a number of the previous people included in Mr Salama’s earlier emails.

177    In the second email, Mr Salama objected to Mr New coping in only a subset of recipients to his earlier email.

178    On 31 May 2017, Mr Salama sent two emails. In the first, he complained that no meeting had been arranged in accordance with the Step 2 procedure and that Sydney Trains had displayed “a total disregard to the DSP and as a result, this matter has now been escalated to step 3”. This email was copied to all previous recipients and also Mr Walsh.

179    In the second email, he emailed Mr New, copying in others, but not Mr Walsh, stating:

It has now been more than 48 hours since I sent you my request for a reason as to why management are persistent in removing relevant parties to this dispute from email responses. Could you please provide me with a response to my question, thank you.

180    Mr New gives evidence that as Mr Salama had elevated the matter to “Step 3”, he no longer had any involvement with the dispute.

181    On 28 June 2017, Ms Rudman wrote an email to Ms Streimer and Mr Walsh saying that Mr Salama and other delegates had requested that the following words be added to the Enterprise Agreement to “clarify the position on delegates performing their duties on paid time”:

The 2014 EA does not require a delegate to inform the TTM if the task being undertaken will only require a reasonable amount of time to complete. It would be expected that the TTM be contacted as soon as practical if the task was to require a significant amount of time to complete.

182    Mr Walsh responded on 30 June 2017 to Ms Rudman, Ms Streimer, Mr Salama and Mr Fozzard saying that he had reviewed the correspondence dated from 19 May 2017 from Ms Francisco concerning the dispute raised by Mr Salama and in particular the emphasised words in her 17 May 2017 email. Mr Walsh’s letter notes that in response Mr Salama asserted that the request “appears to be a breach of the Enterprise Agreement” but that, when asked to supply details, Mr Salama responded by saying “[y]our email to me suggests that I should constantly seek your approval to fulfil my duties as a HSR/Union Delegate”. Mr Walsh said:

There is nothing in Ms Francisco’s email which could reasonably ground that assertion. It is also disappointing that Mr Salama would consider it appropriate to lodge a dispute about a matter which is a completely appropriate management action, and a lawful and reasonable direction.

Indeed, during our meeting on 20 June 2017, Mr Salama stated that Sydney Trains was not interfering with his Union delegate rights and acknowledged that he has received 90 paid hours of leave to perform Union delegate duties this calendar year.

Sydney Trains reiterates that it is willing to support and accommodate Mr Salama’s additional duties. However, the duties involved in Mr Salama’s primary role as Transport Officer must come first. In circumstances where his additional duties may unduly interfere with his primary duties as an employee of Sydney Trains, he must obtain clearance from management.

Accordingly, we do not agree to the wording proposed. The communication from Ms Francisco was very clear, and is consistent with the terms of the Enterprise Agreement and the position of management.

I trust this concludes this matter.

183    No further communication was received by Sydney Trains in relation to the union rights dispute or request issue.

4.10    The stop bullying proceedings

184    On 21 May 2017, Mr Salama commenced proceedings in the Fair Work Commission, filing an application for an order to stop bullying under s 789FC of the FW Act (the stop bulling proceedings). In it, he stated:

While carrying out my duties as a Union Delegate and HSR, I am constantly being harassed and bullied by several layers of management including HR. False allegations in the form of emails and official letters are constantly being thrown at me with threats of disciplinary action being taken against me including termination of employment. This is causing me mental anguish, sleep disorders and family issues.

185    Allegations were made against each of Mr New, Ms Francisco, Mr Keech and Ms Sweeting.

186    In relation to Mr Keech he stated:

After making arrangements directly with my team manager (at the time) or with the manager of FCU, my senior (at the time), Charlie Keech, would constantly try to change the arrangements to inconvenience me. He also tried to change the starting location to Penrith at a 0500 shift knowing that I could not get there in time. When acting in a Team Manager position, he has continued to bully me by not submitting a form that I handed to him. When I tried to contact him in regard to this matter, he ignored my e-mails, sms and calls.

187    In relation to Ms Sweeting he stated:

During several “Attendance Meetings” where I was the Advocate for an employee, I was yelled at by Kirsty Sweeting, being told that the employee can speak for themselves, for both me and the employee to “grow up” and “man up” and being yelled at to “get out!”. Previously, I was also threatened by Kirsty via an email which alledged [sic] that I was wasting managements time pursuing a dispute and that she would report me to the Workplace Conduct and Investigation Unit if I continued to pursue the matter.

188    In relation to Mr New he stated:

In several meetings I was yelled at by Laurence New, being told that he "had a business to run" and that I could not speak on behalf of my members and that "it's not all about you". Also, I was handed a letter from Laurence New with false allegations with threats of disciplinary action.

189    In relation to Ms Francisco he stated:

I have been threatened several times by Amba Francisco that she considered me sending emails in line with my duties as a Union Delegate and HSR, she found to be inappropriate and disruptive to my position as a Transport Officer. She has now requested that I have a formal step 1 PCIP with her and another Team Manager in this regard.

190    On 15 June 2017, Ms Francisco attended a conciliation at the Fair Work Commission in Mr Salama’s anti-bullying proceedings. Ms Francisco gives evidence that:

I cried during the process. I experienced a flood of emotion that day, and I realised how much managing Mr Salama, and the Anti-Bullying Proceedings, affected me. I had felt the stress and anxiety build up as a result of having to be continually on edge around Mr Salama and having to make sure that I did not say a wrong word or put a foot wrong because I knew Mr Salama would pounce on that.

4.11    Attempts to provide counselling to Mr Salama and the PCIP dispute

191    On 18 May 2017, Ms Francisco provided Mr Salama with a letter inviting him to attend a “1st Formal Counselling Session” on 25 May 2017. The letter noted that his conduct was unsatisfactory, and that “communicating appropriately in the workplace” would be discussed at the meeting.

192    The letter from Ms Francisco of 18 May 2017 prompted Mr Skundric to send an email to Mr Walsh on 25 May 2017 where he said “[a]lthough you have indicated you don’t wish to be bothered with any disputes until step 3, a serious matter which is thinly veiled adverse action proposed by Ms. Francisco against Mr. Salama requires that it be brought to your attention”.

193    Mr Walsh responded on the same day asking if the issue had been raised with Mr New, and whether any of the matters raised in his email were part of the bullying allegations. On the same day Mr Skundric responded to Mr Walsh, indicating that Mr New was fully aware of the situation and was “complicit” in it.

194    On 26 May 2017, Ms Francisco, who was accompanied by her support person Damien Kane, met with Mr Salama and his support person Mr Skundric. Ms Francisco took a detailed file note of that meeting. At the outset, she advised Mr Salama that it was important that she and Mr Salama could communicate effectively in the workplace. The first issue they discussed was the language used by Mr Salama towards Mr Keech in their meeting on 31 August 2016, when Mr Salama said that Mr Keech was incompetent (referred to above at [30]). Mr Salama took issue with this matter being brought up again as he considered it was dealt with at the time, and did not accept he committed any breach of policy with respect to his comments. Ms Francisco advised him that if behaviour that is considered inappropriate continues, than an incident may be relevant and brought up again.

195    The second issue they discussed was the Robertson 3 November 2016 meeting where Ms McKendry alleged Mr Salama was argumentative and disruptive while acting as Mr Robertson’s support person (referred to above in section 4.3). Mr Salama argued that the WCIU had found that he had nothing to answer for, however Ms Franscisco explained the process of assessments conducted by the WCIU and how matters could be referred back to be dealt with by local management, which had happened in that case. Mr Salama did not accept this issue was relevant and said that the letter sent by Mr New on 4 November 2016 (referred to above at [127]) should be removed from his record.

196    The third issue they discussed was Mr Salama unnecessarily copying people into emails, and the email sent to him by Ms Francisco on 10 February 2017 (referred to above at [147]) regarding this behaviour. Ms Francisco stated that she wished to understand why Mr Salama insisted on copying in others to his emails. Ms Francisco said that would only be appropriate where something was being escalated, which was not the case during that incident. She informed Mr Salama that she felt that he was trying to embarrass her by the tone and language of his emails, but Mr Salama said that he was only intending to escalate the matter. Mr Skundric insisted that Mr Salama had the right to copy in anyone that he liked to the emails he sends.

197    Ms Francisco gives evidence that a further item discussed at the meeting was whether the meeting was a “Step 2”, formal counselling meeting, or whether it only amounted to informal counselling. Mr Salama and Mr Skundric disputed that it was a “Step 2” meeting.

198    On 29 May 2017, Ms Francisco sent Mr Salama a letter informing him that a second formal counselling session would be held on 1 June 2017.

199    Later that day at 4.47pm Mr Salama sent Mr Walsh an email which included the following:

Considering the nature of the issues raised, we believe that a meeting with you would be most appropriate.

Currently, Amba is trying to force me to attend a meeting regarding my conduct. I have had one meeting with her believing that I could explain how the issues raised where simply a misunderstanding, however, it seemed any defence of my actions were met with resistance and denial of the facts. I responded to Amba requesting that the meeting be postponed until after the Stop Bullying Application, however, she has declined this offer. I now request that we have at least our meeting first so that you are across all the issues before the meeting with Amba.

200    Mr Walsh responded to Mr Salama by email at 6.11pm that day informing him that managers were entitled to have discussions with an employee if they had issues or concerns with the employee’s conduct or performance. Mr Walsh noted that he expected that Ms Francisco and Mr New would manage the meeting in a professional and objective manner, but if Mr Salama had any issues with the conduct of the meeting he could raise them with Mr Walsh afterwards.

201    On 30 May 2017, Mr Salama sent a further email to Mr Walsh, again requesting that the meeting with Ms Francisco be postponed until after Mr Salama and Mr Skundric met with Mr Walsh. Mr Salama also noted that Mr Skundric was unavailable, and argued that meeting Ms Francisco without him present would result in a denial of procedural fairness. He submitted that Ms Francisco was wrong to deny him access to his chosen union delegate, citing Vong v Sika Pty Ltd as authority.

202    On 31 May 2017, Mr Salama sent Mr Walsh a further email, which included the following:

My apologies, I generally afford a 48 hour window to respond, however, due to these extenuating circumstances, I request your urgent response so that I may respond accordingly to Amba. I intend to provide Amba with my response by end of shift today, being at 1430.

Due to the reasons provided to you in my previous email, I am currently of the stance that I will not be attending the meeting with Amba unless I am shown of my legal obligation to do so.

203    Mr Walsh responded to Mr Salama later that morning, stating that Vong v Sika was not applicable, and pointing him to cl 6.8.1 of the “Performance and Conduct Improvement procedure”. He noted that whilst Mr Salama was entitled the benefit of a support person, “the unavailability of a ‘particular’ support person will generally not be sufficient reason to delay the counselling session”. He informed Mr Salama that they would not be meeting until after Mr Salama’s meeting with Ms Francisco.

204    Mr Salama replied to Mr Walsh later that morning with the following:

Thank you Chris for your prompt response, it is much appreciated, however, respectfully I must disagree. I am of the opion [sic] that the case shows that a Union member is entitled to be represented by a Union Delegate. As my Delegate is unavailable, this will be my response to Amba, thank you.

205    On 1 June 2017, Ms Francisco, who was accompanied by her support person Mr Kane, met with Mr Salama with his support person Ms Bennett. Ms Francisco took a detailed file note of that meeting. The first issue they discussed was the incident involving Mr Keech and the uniform reimbursement dispute. Mr Salama insisted that it was Mr Keech who had intentionally done the wrong thing and ignored him, and questioned why it was only his own behaviour that was examined. Ms Francisco reiterated that Mr Salama’s emails and text messages were antagonistic and not sent in the spirit of resolving the issue. They then discussed Mr Salama sending a further email to Mr Keech questioning his suitability as a manager and his lack of professionalism, after he had his discussion with Ms Francisco where he was advised that his language was inappropriate. Ms Francisco informed Mr Salama that the problem was not that he had lodged a grievance, but that his emails to Mr Keech were “combative, argumentative and condescending in tone”. Mr Salama again questioned why nothing had been done about Mr Keech’s behaviour, and Ms Francisco reiterated that the WCIU had determined that Mr Keech had done nothing wrong. They then discussed Mr Salama’s comment to Ms Francisco regarding managers breaching the Enterprise Agreement (referred to above at [166]).

206    During this meeting, Ms Francisco advised Mr Salama of the following things she wished to see from him moving forward, as recorded in her file note:

•    Maintain objectivity in situations of conflict, do not resort to personal attacks or criticisms

•    Respond appropriately to feedback from managers

•    Communication in the workplace is to be courteous and respectful including using the appropriate tone of voice for the situation

207    Ms Francisco advised Mr Salama that she would be placing him on a PCIP. She took the view that his conduct at both formal counselling sessions made clear that he did not see any problem with the comments he had made to management and how he had treated Mr Keech. Her file note records that Mr Salama insisted that he was only at “Step 1” of the Performance Improvement Procedure process. It also records that Ms Francisco advised that this was not the case, owing to the fact that there had already been many instances of informal counselling. Ms Francisco noted that a formal meeting would take place on 7 June 2017. This meeting ended up being postponed until 20 June 2017.

208    A further meeting was held on 20 June 2017 which Mr Salama attended together with Mr Fozzard and Ms Rudman, both of the RTBU, and Ms Francisco. At that meeting Ms Francisco gave Mr Salama a letter dated 7 June 2017 (7 June 2017 letter) entitled “Follow up from 1st Formal Counselling Session: PCIP”. This letter is referred to in the show cause letter and relevantly includes:

(1)    A section entitled “Background and informal counselling” which refers to the meeting conduced in January 2017 by Ms Hole where the members of Mr Salama’s team were informed of the requirements for working together and of the Code of Conduct. The letter also referred to a follow up letter from Ms Hole dated 9 February 2017 outlining the need to maintain suitable interpersonal communication between individuals. The letter continues:

Unfortunately, since that time, it has been necessary to provide you with informal counselling in relation to conduct and behaviour that does not meet expectations. For example and without limitation:

•    10 February 2017: I sent you an email to remind you about appropriate communication; that is, I reminded you that I had already informed you that it was not appropriate for you to copy in other parties to our communications who are not involved in the arrangements. In that email, I stated that “on my return from leave I will facilitate a discussion for us to better understand each other and the boundaries for us when communicating by email.

•    27 April 2017: I again reminded you that it was not appropriate to copy in other parties to our communications who are not involved in the arrangements…

•    9 May 2017: I had a conversation with you advising that your lodgement of the grievance against Mr Keech was inappropriate and provided you with a copy of the Reimbursement Procedure which had been correctly followed by Mr Keech...

(2)    A section entitled “Invitation to 1st Formal Counselling Session” which refers to Ms Francisco’s letter of 18 May 2017 and goes on to say that since at least 9 February 2017 Mr Salama has been repeatedly informally counselled in relation to interpersonal skills and appropriate communication in the workplace. It identifies that on 9 May 2017, Mr Salama was informed by Ms Francisco that his email communication concerning the reimbursement procedure with Mr Keech was inappropriate and that further on 17 May 2017 he had engaged in inappropriate communication when he said “it would help if management stopped breaching the EA", which she confirmed by email was highly inappropriate and unsubstantiated.

(3)    A section entitled “Performance Conduct and Improvement Plan (PCIP)” which relevantly says:

Step 1 (Informal Counselling) of the remedial process under the Performance and Conduct Procedure has not resulted in an improvement in your conduct and behaviour. You are also failing to meet the expectations outlined in the letter to you from Ms Hole dated 9 February 2017.

In those circumstances, I confirm that it has been deemed necessary to move to Step 2 (PCIP and Formal Counselling) of the Procedure in an attempt to assist you to remedy your behaviour and conduct in the workplace, and improve your interpersonal skills.

The issues discussed and actions developed in the sessions on 26 May 2017 and 1 June 2017 are summarised in the attached Performance/Conduct Improvement Plan.

As discussed in the sessions, we will meet on a regular basis to review your progress in meeting the standards of conduct expected and/or in implementing these actions.

...

I also take this opportunity to confirm that:

•    I am directing you not to copy in others to our email communications, unless they are directly involved in the communication

•    I am directing you to ensure that your communication by email, or in person, is fair and respectful, regardless of any view you many have about the individual employee

These directions are lawful and reasonable, and a failure to comply in future, irrespective of the ongoing PCIP process, could result in disciplinary action being taken against you, up to and including termination of your employment.

You are expected to listen to and follow reasonable instructions issued by those in supervisory or management positions, without constantly challenging, and arguing with, decisions conveyed to you.

209    Ms Francisco gives evidence that she attempted to give Mr Salama the PCIP during that meeting but he refused to take it. Mr Salama gives evidence that his representatives informed Ms Francisco that they disputed that any “Step 1: Informal Meeting” had taken place. He also gives evidence that he does not recall the PCIP being discussed at the meeting.

210    Later that day Ms Francisco emailed Mr Salama a copy of the PCIP, and informed him that she would separately contact him to arrange a “first Progress Review meeting” that would take place in approximately four weeks. The PCIP specified the following issues to be addressed:

Communication

You must treat your managers and colleagues fairly, consistently and with respect by ensuring all communication is professional and considerate.

…

Lawful and reasonable request

You must comply with reasonable lawful requests, directions and instructions given in the course of your duties.

…

Confidentiality

You must maintain an appropriate level of confidentiality in the workplace.

…

Interpersonal relationships

Maintain professional and courteous relationships with colleagues and manager.

…

Understand the duties, responsibilities and accountabilities of the Transport Officer role

…

211    The PCIP included detailed goals and targets to be achieved by Mr Salama with respect to each of the above points. It also directed him to section 3 of the Code of Conduct.

212    On 21 June 2017, Mr Fozzard wrote an email to Ms Francisco (copied to Ms Streimer, Ms Rudman and Ms Bennett) under the subject “Notice of Dispute Regarding PCIP” in which he referred to the meeting of the day before concerning Ms Francisco’s decision to place Mr Salama on a “Step 2 Performance, Conduct and Improvement Plan (PCIP)”. The email said:

As it is quite clear that the Sydney Trains’ has not complied with their own policy and procedure relating to the PCIP process and by imposing a PCIP on Joe denies him procedural fairness [sic].

The email argues that despite Sydney Trains’ contentions, Mr Salama had not undertaken “Step 1 ‘Informal’ counselling”. It is this email that is said by Mr Salama in these proceedings to mark the commencement of the PCIP dispute.

213    Ms Francisco responded on 23 June 2017 noting that there were said to be two grounds for the PCIP dispute, first, a concern that Sydney Trains had not complied with its own procedures, and, secondly, that Mr Salama had not in any discussions been provided information that he was being submitted to “informal counselling”. Ms Francisco responded in detail to the allegations, noting that she considered Mr Salama to have been informally counselled on several occasions and that nothing in the Performance Improvement Procedure required a person to be informed that they were being given informal counselling. Ms Francisco also provided a chronology, by reference to her letter of 18 May 2018 and the steps that followed, where formal counselling was provided, culminating in the meeting of 20 June 2017. Ms Francisco concluded by expressing her hope that the concerns raised and dispute advanced was resolved.

214    On 26 June 2017, Mr Fozzard responded saying that the dispute had not been resolved and that it is “now elevated to Step 2”. The dispute was not resolved there, and it was elevated to “Step 3”. Thereafter Ms Francisco ceased to be involved.

215    On 31 July 2017, Ms Streimer, on behalf of Sydney Trains, sent the following email to Mr Fozzard, copied to Ms Rudman and Ms Davis, regarding the PCIP:

As per the letter given to [Mr Salama], Sydney Trains is of the opinion that the PClP was not enacted due to [Mr Salama's] dispute. As such, the PCIP is not being continued.

216    Ms Streimer gives evidence that this was because although Sydney Trains had “sought” to place Mr Salama on a PCIP, he had failed to co-operate with the remedial process so it had not been implemented. Accordingly, as the show cause letter said, only an attempt to implement the PCIP had been made, but it had not succeeded.

4.12    The field start issue

217    Between 19 June 2017 and 25 June 2017, Mr Salama and Ms Francisco exchanged a number of emails regarding a change to Mr Salama’s shift on 28 June 2017 so that he could attend a FCU Local Consultative Committee meeting. This became the field start issue to which I refer in more detail below.

218    The facts may be briefly stated, and emerge from a series of ten emails from 19 June 2017 until 25 June 2017:

(1)    On 19 June 2017, Mr Salama informed Ms Francisco that he had a meeting on Wednesday 28 June 2017 starting at 1.00pm. He said “please adjust my roster accordingly and please also note that I have a field start on this day...”. A field start for Mr Salama was normally commenced at Blacktown;

(2)    On 23 June 2017 Ms Francisco responded, noting that she had checked the day’s deployments and that there were no other 5.00am shifts rostered for that day who could meet him at Blacktown at 6.00am, and that accordingly he would need to sign on at Redfern to be deployed with a 6.00am team;

(3)    Mr Salama responded on the same day, saying “I believe that there are several options available to address the situation”. He lists seven and then says “[p]lease consider these options and advise if one would be suitable...”;

(4)    Ms Francisco responded on the same day (at 9.12pm) saying that she had considered all of those options when she made the direction, but that if he wanted to maintain a field start, he could do so at 5.00am with his team at Blacktown and take one hour of time in lieu, but not as overtime as he requested;

(5)    Mr Salama responded on Sunday 25 June 2017 at 4.06pm, quoting cl 60 of the Enterprise Agreement (which addresses overtime) and providing Ms Francisco with three options, each of which either had him paid overtime for a 5.00am start, or had him starting at 6.00am at Blacktown;

(6)    Ms Francisco responded on the same day, noting that as he has refused the time in lieu option, his shift would start at 6.00am in Redfern. She noted that because his shift started then, he would not be entitled to overtime;

(7)    Mr Salama responded, also on the same day, saying that the notice requirement to change the starting hours to a working roster is a minimum of 72 hours, and that he refused the change “as it is not in my best interest. Please advise which of the alternate 3 options mentioned in my previous email would suit you best”. This is a bizarre email. It was Mr Salama’s request for a change to his start time that led to Ms Francisco advising him of the change in (2) above, which was well in advance of 72 hours before his shift was due to start;

(8)    Ms Francisco responded on the same day (at 7.23pm on Sunday night) saying that his roster change was agreed on 23 June 2017 at his request (see email (2) above), and would stand;

(9)    Mr Salama responded three minutes later saying that it was not agreed, and that there was “only an option” to start in the field at 6.00am (e.g. in Bankstown, which suited him) and that he would do so, if Ms Francisco agreed; and

(10)    Ms Francisco then reaffirmed, in an email at 7.39pm that night, that the shift would start, as she had directed, at 6.00am at Redfern.

219    Thereafter Mr Salama escalated the issue to Mr New, by email dated 25 June 2017. Mr New responded to this email noting that after reviewing the correspondence between Mr Salama and Ms Francisco, he believed “that she has attempted to act in a way that balances both yours and the business’ best interests”. In order to finalise the issue, Mr New directed that he would be met at Blacktown at 6.00am to commence his shift. Mr New gives evidence that he did this in an attempt to relieve the pressure on Ms Francisco.

4.13    The “managers are fair game” email

220    Ms Francisco gives evidence that the exchange with Mr Salama in relation to the field start issue, which primarily occurred over the weekend, left her feeling exhausted and stressed, and it affected her sleep prior to her shift commencing at 5.00am the next day, 26 June 2017. On 26 June 2017, she emailed Ms Miller, the Legal Counsel for Sydney Trains who was overseeing Mr Salama’s anti-bullying proceedings, copying in Mr New and Ms Sharp, the latter being the solicitor for Sydney Trains in this proceeding. The subject line of that email was “Managers are fair game – When does it end?”. In it, Ms Francisco explains that she is 32 years of age and has given 14 years of her life to public service. She described that she felt as if the exchange detailed in section 4.12 above was “the straw breaking the camel’s back” and that she felt as if she was a victim of a systematic attack by Mr Salama, who challenged every decision she made. She considered that he was unwilling to accept any direction and was relentless in trying to get what he wanted. She said:

When I took on this role I knew it would be a challenge. However, I did not think I would become the victim of a systematic attack by an employee who wants nothing more than to see me and this business fail. Joe’s history shows that he will work, as long as he is getting what he wants. The moment anyone makes a decision that contradicts Joe’s wishes, he either lodges a complaint claiming bullying, seeks investigation through an independent body or constantly challenges them to the point where he gets what he wants. He is relentless in his approach…

221    She felt as if she was now “fair game” in Mr Salama’s eyes. She said:

I wake every morning wondering what stress Joe will cause me next, I am losing confidence to make decisions and my team deserve a better leader than what I am currently giving them. Joe himself made the concession that he consumes 90% of my time when we visited the Fair Work Commission, I have 26 other people in my team that need my attention – attention that adds value to the business by motivating them and developing them.

(emphasis in original)

222    On 27 June 2017, Mr New forwarded Mr Francisco’s email to Mr Walsh. Mr New gives evidence that they had a brief conversation that day in which Mr New said he would monitor Ms Francisco’s wellbeing.

4.14    The notification issue

223    On 4 July 2017, Ms Francisco and Mr Salama exchanged emails regarding a union-related meeting that Mr Salama attended that day. Mr Salama had not notified Ms Francisco that he would be attending this meeting. She wrote to him saying:

Ok, could you please ensure that you notify me of all meetings you need to attend so suitable arrangements can be made in advance.

224    Mr Salama then replied:

Regarding meetings that are requested by members or delegates, such as the one I asked for tomorrow, it is quite understandable as you may not be aware of these meetings and I need your release to attend. However, it was my understanding that if a manager had organised the meeting and sent out the invites that the TTM's would have already been aware. Just seeking clarity on procedure, can you please confirm if this is correct as it would be counterproductive to have confirmation from two different sources for the same event, thank you.

225    Ms Francisco sent the following reply:

Irrespective of who organises the meeting, it is expected that you will have a conversation with me regarding your release.

4.15    Steps leading to the show cause letter

226    On his return from leave, Mr Walsh sent Mr New an email on 18 July 2017 which included the following:

Prior to my leave I was briefly brought across the letter from Amba in relation to her ongoing concern and affect to her health regarding dealings with Joe Salama.

I'm now back from leave and have reviewed her concerns in detail.

Can we please get together tomorrow to discuss so I can gain greater clarity and understanding about Joes approaches with Amba as it seems to me that the pattern of behaviour from Joe is unrelenting despite being previously communicated to in writing regarding expectations of behaviour and conduct in the workplace.

I need to make a decision regarding the best way forward to ensure a duty of care is extended to Amba which allows her to perform her role free from unacceptable conduct and behaviour from her direct report.

227    On 19 July 2017, Mr Walsh met with Mr New. Mr Walsh gives evidence that Mr New said that he was “deeply concerned about the impact” of Mr Salama’s behaviour. Mr Walsh recorded a file note of that conversation and emailed it to Mr New following the conversation. The file note records that Mr New “confirmed that from his perspective the general sentiment raised by Amba portrays an accurate description of the issues and approaches Amba has been subjected to by Mr Salama over time, which continue to take place” and that remedial action was not working. The file note also records Mr Walsh’s own concerns as follows:

•    I am concerned about this continuing pattern of conduct/behaviour despite remedial action.

•    I have been across some of the issues highlighted by Amba and concur with her views in relation to the motivation behind them.

•    I have a duty of care to Amba to ensure she is not subjected to unfair, harassing or unacceptable conduct or behaviour that may impact her health.

•    I will seek advice as to the most appropriate course of action given that prior interventions and attempts to remediate are seemingly proving futile.

228    Mr Walsh gave evidence, which I accept, that the remedial action he was referring to included the letter from Ms Hole on 9 February 2017, the mediation with an external mediator, and Ms Francisco’s attempts to place Mr Salama on a PCIP. Mr Walsh stated that he had become concerned that Mr Salama could not change his argumentative behaviours and was unable to create, foster and maintain business-like relationships with the people he worked with.

229    On 20 July 2017, Mr Walsh sent Mr Salama an email informing him that a meeting would take place on 24 July 2017 where he would be issued a letter.

4.16    The show cause letter, its response and the letter of termination

230    On 24 July 2017, Mr Walsh met with Mr Salama and handed him the show cause letter.

231    The show cause letter began:

Dear Joe

Your ongoing employment and opportunity to respond

As Deputy Executive Director Customer Delivery I have obligations to ensure the health, safety and welfare of staff within the Customer Service Directorate.

Further, despite remedial action and attempts to improve your behaviour and conduct over a period of time, you have failed to demonstrate the required level of competence/ suitability for your position.

By your conduct, you have failed to cooperate with the remedial process.

I am concerned that your ongoing employment has become untenable. The purpose of this letter is to outline the basis of my concerns and give you a proper opportunity to respond before I make a final decision.

Background

As you know, in January 2017, Ms Hole, General Manager People held a meeting with all team members from Team 5B to ensure that all members were advised equally, and understood, the requirements of working together and the Code of Conduct. A letter from Ms Hole dated 9 February 2017 was issued to you, and all members of Team 5B, which included the following expectations:

•    Maintain suitable interpersonal skills and communication that enables and allows for effective, fair and respectful working relationships, regardless of any view they may have about an individual employee

•    Be able to listen to and follow reasonable instructions issued by those in supervisory or management positions

•    Constructively receive feedback on work performance and participate in/attend performance review meetings

•    Work under instructions and as reasonably directed by relevant supervisors/managers

The letter further stated “All persons working with Sydney Trains are expected to meet these standards and abide by the Code of Conduct. As is the case for any employee, any breach of our Code of Conduct may lead to disciplinary action up to and including termination of employment”.

Unfortunately, since that time, your negative conduct and behaviour has continued.

232    Under the heading “Your conduct and behaviour”, Mr Walsh then said:

In a further attempt to assist you to improve your conduct and behaviour consistent with Sydney Trains’ values and expectations, Sydney Trains sought to place you on a Performance Conduct and Improvement Plan (PCIP).

233    The letter goes on to refer “in particular”, but not exhaustively, to seven itemised matters:

(1)    The first is summarised in the chronology in section 4.11 under the heading the “attempts to provide counselling to Mr Salama and the PCIP dispute”. It provides:

On 18 May 2017, you were informed that you would be subject to 1st Formal Counselling and placed on a PCIP. You immediately challenged the content of the letter and notified a dispute. In so doing, you failed to “Constructively receive feedback on work performance and participate in/attend performance review meetings”.

(2)    The second concerned the stop bullying proceedings, which are described in the chronology in section 4.10 . It commenced:

On 21 May 2017, you filed an application for an order to Stop Bullying Order [sic] with the Fair Work Commission (Application). You are well within your rights to file legitimate applications with the Fair Work Commission and other bodies. It is not acceptable to file vindictive and/or unreasonable applications which impact on the welfare of Sydney Trains’ employees. I have carefully reviewed your Application and it is my view that:

(a)    the Application was filed in direct retaliation to the letter of 18 May 2017 and does not disclose any legitimate allegation of bullying;

(b)    the Application was filed to avoid reasonable management action;

(c)...(f)    [each detailed why, in the opinion of Mr Walsh, the bullying allegations against each of Amba Francisco, Tony New, Charlie Keech and Kirsty Sweeting were unfounded and attempts to embarrass or harass them]

(3)    The third referred to a letter from Ms Francisco dated 7 June 2017 issued to Mr Salama on 20 June 2017 (set out in more detail in section 4.11), where she identified her concerns and expectations about his behaviour, which Mr Walsh considered were reasonable concerns and expectations;

(4)    The fourth provided details of how in emails during the period from 23 June 2017 to 25 June 2017, Mr Salama challenged and argued with a decision, which Mr Walsh considered to be reasonable, concerning an adjustment to rostering arrangements that Mr Salama had himself requested. The details of the email exchange are summarised in the chronology under the heading “the field start issue” (see section 4.12);

(5)    The fifth concerned a dispute that Mr Salama had escalated to Mr Walsh on 30 June 2017 where Mr Salama is said to have “again challenged, and argued with, a reasonable instruction and decision conveyed to [him] by Ms Francisco”. This concerns part of the union rights dispute and request issue (see section 4.9) in respect of which Mr Walsh said:

…In particular:

(a)    The context was an email from Ms Francisco to you in which she stated “You advised that these duties can take up to 2 hours out of a day. To clarify, it is expected that while you are on patrol, you are patrolling...If you require additional time to complete these extra duties, please request it and I will assess each request and accommodate where feasible”

(b)    This was a reasonable instruction and decision.

(c)    You responded to Ms Francisco by stating “your request appears to be a breach of the EA” and you emailed Ms Francisco a copy of clause 38 of the Enterprise Agreement.

(d)    When Ms Francisco asked you to clarify the basis of the alleged breach, you stated “Your email to me suggests that I should constantly seek your approval to fulfil my duties as HSR/Union Delegate.”

(e)    There was no basis for your assertion and it amounted to you challenging and arguing with a reasonable instruction and decision conveyed to you by Ms Francisco.

(6)    In the sixth, Mr Walsh refers to the notification issue (set out in section 4.14):

On 4 July 2017, Ms Francisco became aware that you were attending a meeting that day and sent an email to you stating “ok, could you please ensure you notify me of all meetings you need to attend so suitable arrangements can be made in advance”. This was a reasonable instruction and decision. In response you argued with and challenged the email from Ms Francisco.

(7)    In the seventh, Mr Walsh referred to 6 July 2017 when:

…Ms Francisco sent an email to you and a number of other staff which stated “Congratulations on your nominations to take part in the Master Roster Review. This will take place on Wednesday 19 July ...” In response, you “replied all” with an argumentative and disrespectful email in which you:

(a)    argued about how members of the committee were selected;

(b)    alleged that the members were “pro management”;

(c)    alleged that the date had been selected because you were on an HSR course that day and therefore would be unable to attend.

234    The show cause letter continued, making several allegations of misconduct:

In my view, your conduct and behaviour as detailed above demonstrates that you are failing to:

•    Maintain suitable interpersonal skills and communication that enables and allows for effective, fair and respectful working relationships, regardless of any view they may have about an individual employee

•    Be able to listen to and follow reasonable instructions issued by those in supervisory or management positions

•    Constructively receive feedback on work performance and participate in/attend performance review meetings

•    Work under instructions and as reasonably directed by relevant supervisors/managers

•    Listen to and follow reasonable instructions by those in supervisory or management positions, without constantly challenging, and arguing with decisions conveyed to you

Furthermore, in my view, your conduct and behaviour detailed above demonstrates that you lack the ability to work collaborately [sic] and as a member of the team, and that you are unable to consider the bigger picture and align your decision-making with the overall organisation objectives.

Your conduct may, if proven, represent a breach of the Transport for NSW Code of Conduct (Our Code of Conduct) including Section 3 – Staff responsibilities, Section 9 – Workplace health and safety and Section 12 – Bullying, harassment, discrimination and inappropriate workplace conduct.

…

Opportunity to respond

Despite remedial action and attempts to improve your behaviour and conduct over a period of time, you have failed to demonstrate the required level of competence/ suitability for your position. I therefore put you on notice that Sydney Trains is considering the termination of your employment in accordance with part 8.1.2 of the Performance and Conduct Improvement Procedure.

Before a decision is reached on this matter, I offer you the opportunity to make any submissions that you wish to make to me in writing. Please provide me with any information that you consider relevant to my decision within seven (7) days. In the absence of your response by this date, a decision will be made on the information currently available. Following on from this date, you will be advised of the final decision in relation to your employment.

I have also determined to suspend you with pay, on master roster, with immediate effect.

…

(emphasis in original)

235    Michael Vassili, the solicitor then retained by Mr Salama, responded by letter dated 31 July 2017. On his behalf, he denied that Mr Salama had acted in a manner inconsistent with his responsibilities under the Code of Conduct and referred to the stop bullying application, noting that in it, Mr Salama had raised serious allegations of bullying by Mr New, Ms Francisco, Mr Keech and Ms Sweeting. The letter also stated:

Furthermore, the other examples of alleged failure to abide by directions are in fact examples of Mr. Salama exercising his workplace rights by raising concerns regarding the terms and conditions of his employment.

However, we note that you are considering the termination of our client on the premise of the very conduct which he has raised for determination by the Fair Work Commission and for exercising his workplace rights.

In the circumstances, your purported intent to terminate the services of Mr. Salama on account of the matters set out in your letter would amount to an attempt at parallel determination of the matters before the Fair Work Commission; a punishment of Mr. Salama on account of the exercise of his legal rights and patent adverse action.

The letter concludes by seeking confirmation that the show cause letter and process outlined in it would be immediately withdrawn.

236    On 31 July 2017, Ms Sharp, a solicitor instructed by Sydney Trains, sent a letter to Mr Salama’s legal representative noting that the process would not be withdrawn and was not connected with Mr Salama exercising a workplace right. It said:

We note that you state in your letter that Mr Salama denies he has acted inconsistently with his responsibilities under the Code of Conduct, and that he rejects the premise of the communication.

We assume that your letter constitutes the entirety of the response from Mr Salama in relation to the opportunity to make any submissions in writing by close of business on 31 July 2017.

However, if we are wrong on that, and there are any other matters which Mr Salama would like taken into account before a final decision is made in relation to his ongoing employment, please outline those matters to me by no later than 10.00am on 1 August 2017.

237    No response was received to this request.

238    Mr Walsh gives evidence that he was disappointed by the fact that Mr Salama did not take up the chance provided by the show cause letter to demonstrate some insight and willingness to take responsibility for his actions and agree to make a positive change. If Mr Salama had responded in a fashion that indicated he was willing to reconsider his behaviour and to commit to his obligations under the Code of Conduct, then he would have given such a response consideration and may have considered options other than dismissal. In Mr Walsh’s view, Mr Salama failed to show any insight or reflection on the concerns raised in the show cause letter. I accept that Mr Walsh genuinely held these views.

239    On 4 August 2017, Mr Walsh prepared a briefing note for Mr Kable, whose authorisation was required to terminate Mr Salama’s employment. This note outlined the sequence of events from Ms Hole’s letter of 9 February 2017 up to July 2017. The briefing note summarised the letter from Ms Hole and the standards of conduct that she had emphasised and referred separately to the conduct to which Mr Walsh had referred in the show cause letter. Notably it said:

On 18 May 2017, following repeated informal counselling, Mr Salama was informed that he would be subject to 1st Formal Counselling and placed on a PCIP in relation to “communicating appropriately in the workplace”.

During the period 18 May to 19 July 2017, Mr Salama engaged in conduct which demonstrated a failure to co-operate with the remedial process. That conduct is detailed in the “show cause” letter discussed below.

On 19 July 2017, I had a meeting with Mr Tony New to discuss an email that he had received from Ms Amba Francisco on 26 June 2017 (I note that I was on annual leave during the period Monday 3 July to Friday 14 July 2017 inclusive). A copy of the email – bearing the subject heading “Managers are fair game – when does it end” – is annexed and marked A.

...

On 24 July 2017, I had a meeting with Mr Salama and issued him with a letter informing him that I considered his ongoing employment had become untenable, but seeking his response before making a final decision...

240    The briefing note attached:

(a)    Ms Hole’s letter to Mr Salama dated 9 February 2017;

(b)    Ms Francisco’s letter to Mr Salama dated 7 June 2017;

(c)    the PCIP;

(d)    the “managers are fair game” email;

(e)    the file note of Mr Walsh’s conversation with Mr New on 18 July 2017;

(f)    the show cause letter; and

(g)    the letter from Mr Salama’s legal representative to Mr Walsh dated 31 July 2017.

241    Mr Kable approved Mr Walsh’s recommendation by signing the briefing note on 7 August 2017.

242    On 14 August 2017, Mr Walsh handed Mr Salama a letter of termination. This letter included the following passage:

On 24 July 2017, I handed you a letter that provided you details of your inability to demonstrate the required level of competence/suitability for your position. That letter advised you that consideration was being given to recommending the termination of your employment. You were given the opportunity to provide any information you considered relevant to this decision.

Your response to this request was received on 31 July 2017, sent from your solicitor…I have now reviewed this matter including your solicitor's response.

This letter is to inform you that your employment with Sydney Trains as a Transport Officer (TO) is to be terminated effective immediately on the grounds of inability to demonstrate the required level of competence and suitability in the TO role.

5.    THE WORKPLACE RIGHTS AND INDUSTRIAL ACTIVITY

5.1    Introduction

243    Mr Salama’s claim under s 340 centres on the contention that the exercise, or purported exercise, of his workplace rights was a substantial and operative factor for the taking of the adverse action. The parties agree that before considering whether this is so, it is first necessary to consider whether Mr Salama exercised, or proposed to exercise, the pleaded workplace rights. Sydney Trains disputes that the pleaded workplace rights satisfy that description, and further contends that insofar as Mr Salama was purporting to exercise those rights, he not was doing so for a legitimate purpose.

244    The asserted workplace rights are said to fall into three categories, each of which is recognised in s 341(1) of the FW Act.

245    First, workplace rights arising pursuant to s 341(1)(a) as a person who is entitled to the benefit of or a role or responsibility under a workplace law or instrument. In this regard Mr Salama relies on rights arising under cl 38 of the Enterprise Agreement to: (1) act as an advocate at the Robertson 3 November 2016 meeting; and (2) to initiate the union rights dispute on 18 May 2017. As is clear from Mr Salama’s submissions and section 4.9 of the chronology, there is a substantial, perhaps complete, overlap between the union rights dispute (relied upon as a workplace right under s 341(1)(a)) and the request issue (relied upon as a workplace right under ss 341(1)(b) and 341(1)(c)(ii)), in that both are said to have arisen out of Ms Francisco’s direction to Mr Salama that he request additional time to perform his union duties if he needed it, a direction which Mr Salama took issue with and initiated a dispute under the DSP. What is unclear from Mr Salama’s submissions, however, is how he says that the union rights dispute was initiated in his capacity as a union delegate (being a person having a responsibility under the Enterprise Agreement within s 341(1)(a)) rather than in his capacity as a person able to initiate and participate in a process (the DSP) under the Enterprise Agreement (within s 341(1)(b)). Given the lack of clarity in Mr Salama’s submissions on this point, and the fact that I conclude below in section 5.3.1.2 that the (substantially similar) request issue involved the exercise of a workplace right under s 341(1)(b), it has been unnecessary for me to consider whether the union rights dispute involved the exercise of a workplace right under s 341(1)(a).

246    Secondly, the exercise of workplace rights to initiate or participate in a process or proceedings under a workplace law or instrument pursuant to s 341(1)(b).

247    Mr Salama contends that the initiation of disputes in relation to: (1) the field start issue; (2) the request issue (which arises from the union rights dispute); and (3) the PCIP dispute all arise from cl 8 of the Enterprise Agreement which provides for the initiation of disputes under the DSP; and (4) the stop bullying proceedings which Mr Salama contends arises as a proceeding before the Fair Work Commission.

248    In his closing submissions Mr Salama also refers fleetingly to his initiation or participation in a conciliation conducted by the Fair Work Commission in late 2016 concerning a higher grade allowance and his participation in a conference arising from an application by Mr Robertson to the Fair Work Commission in early 2017. These additional matters were not developed in submissions and I was not directed to any evidence on these matters. As it is wholly opaque as to how Mr Salama relies on them, I do not address them further.

249    Thirdly, the exercise of a right to make a “complaint or inquiry” in relation to his employment pursuant to s 341(1)(c)(ii). The List of Issues identifies within this category each of the field start issue, the request issue and the notification issue as being relevant, as well the instances where he invoked the DSP under cl 8 of the Enterprise Agreement. However, in closing submissions, Mr Salama only makes reference to the field start, request and notifications issues in addressing his claim under s 341(1)(c)(ii), and then appears to abandon reliance on all but the notification issue in relation to this claim, submitting:

If the above matters are considered only the “notification issue” could possibly constitute an “inquiry” made in relation to his employment under s 341 (1) (c) (ii) and which was quickly resolved. However, this instance is relied upon by Sydney Trains apparently as a “reason” for its decision to suspend, and thereafter dismiss the Applicant, as identified at numbered paragraph 6 within the “show cause” letter. All of the other exercises of workplace rights by the Applicant as identified do not depend on s 341 (1) (c) (ii) of the FW Act in that these arise in reliance upon a workplace instrument, namely the 2014EA and became “disputes”.

(citations omitted)

250    It is unclear from this paragraph whether Mr Salama intended to abandon his case under s 341(1)(c)(ii) insofar as it relies upon the field start and request issues or, alternatively, whether he intended to instead rely on these issues as “complaints” rather than “inquiries” within s 341(1)(c)(ii). What is clear, however, is that Mr Salama accepts that the field start and request issues culminated into disputes which he initiated and participated in under the Enterprise Agreement, and so I have addressed them in the context of his claim under s 341(1)(b).

251    Separately, Mr Salama relies upon the fact of his status as an officer or member of an industrial association in connection with this claim advanced pursuant to s 346(a). In opening submissions, he accepted that his pleaded case did not entitle him to rely on any specific acts or events, beyond his general status as a union delegate and HSR, as a reason that the adverse action was taken.

5.2    Workplace rights from role or responsibility as a union delegate (s 341(1)(a))

5.2.1    The Robertson 3 November 2016 meeting

252    Section 4.3 above addresses the events surrounding the Robertson 3 November 2016 meeting. It will be recalled that the meeting on 3 November 2016 arose from a concern on the part of Sydney Trains that Mr Robertson had frequently been absent from work. It was the second meeting convened to address this issue, the first being on 22 September 2016. Mr Shield’s file note of 23 September 2016 indicates that Sydney Trains was concerned that Mr Robertson had been absent on 94 occasions, and that the meeting was a “step 2 attendance” meeting. A further meeting on 3 November 2016 was then convened.

253    Mr Salama contends that, in attending the Robertson 3 November 2016 meeting and seeking to advocate on Mr Robertson’s behalf, he exercised, or was denied the exercise of, a workplace right as a union delegate. Sydney Trains disputes this. It contends that his attendance at that meeting was purely as a “support person” and that he was not entitled to act as an advocate.

254    Resolution of this issue involves consideration of the correct interpretation of the Enterprise Agreement. The construction of such an agreement is to be approached in a practical manner, having regard to its expressed intention in the context of the relevant industry and industrial relations environment: Kucks v CSR Limited [1996] IRCA 141 at 4 (Madgwick J), cited with approval in Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 at [96] (Kirby J) and [129] (Callinan J); see also Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; 264 FCR 342 at [56] – [58] (Rares and Barker JJ) and City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813; 153 IR 426 at 57 (French J).

255    Clause 28 is entitled “Leave Provisions”. Within it, cl 28.10 is entitled “Attendance Management” and relevantly provides:

28.10    Attendance Management

(a)    Aim

i.    The attendance management procedure is aimed at assisting managers/supervisors in the management of total sick leave, single day sick leave and non-approved absences. This procedure has as its guiding principle the welfare of the Employee.

ii.    This procedure recognises that many factors, other than genuine illness, may cause an individual to take sick leave, including family and financial commitments, drug and alcohol abuse and morale at work. These problems are more likely to be identified and resolved early if attendance is managed effectively.

(b)    Attendance Management Model

STEP 1: Increase Awareness and Monitor Absences

i.    The Employer will regularly communicate attendance requirements to Employees. The Employer will also regularly monitor attendance. Where an individual's attendance appears to be unsatisfactory, the Employer will discuss this with the Employee and will reinforce attendance requirements.

ii.    Where appropriate, the Employer will refer the Employee to available support services such as the Employee Assistance Program.

STEP 2: Formal Interview

iii.    If an Employee's attendance remains unsatisfactory, the Employer should arrange an interview in private with the Employee, who is to be advised that they may invite a support person to this interview. The discussion should be confidential, constructive and aimed at problem solving. Details of the interview should be documented, a copy given to the Employee and a copy placed on the Employee's personal file. The interview should aim to:

A.    Provide information/feedback on the Employee's attendance record.

B.    Discuss the issue with the Employee and establish the reason(s) for the unsatisfactory attendance.

iv.    If the reasons for absences are determined to be unsatisfactory and are not supported by Medical Certificates or to the satisfaction of the manager then the Employer will:

A.    Reinforce what performance is expected of the Employee and set goals. These goals may include the Employee seeking assistance to address any underlying personal issues.

B.    Set another time to review attendance and let the Employee know that their performance will be monitored in the interim.

C.    Follow-up and counsel Employees who are poor attendees prior to any further course of action. Effective counselling is a means of improving an Employee's absence record and should be used to head off further action where possible.

256    Clause 38 is entitled “Union Rights”. Clause 38.1 provides:

38.1 Union Delegates

(a)    The Employer will recognise Union delegates.

(b)    The Employer acknowledges that Union delegates represent and speak on behalf of members in the workplace and that their representation rights in relation to matters that pertain to the employment relationship are integral to the proper operation of the Dispute Settlement Procedure contained within this Agreement.

(c)    Accordingly, the Employer will allow Union delegates reasonable time during working hours to perform the duties listed below:

i.    represent members in bargaining;

ii.    represent the interests of members to the Employer and industrial tribunals including time to prepare any documentation;

iii.    participate in consultations;

iv.    consult with union members and other Employees for whom the delegate is a representative; and

...

...

(f)    Union delegates must give reasonable notice to their manager of the requirement to attend a meeting arising as a result of the operation of the Dispute Settlement Procedure. Unless not otherwise possible a Union delegate should not interrupt Employees who are undertaking their work duties.

257    Mr Salama accepts, and I find, that the Robertson 3 November 2016 meeting was a “Step 2” interview for the purposes stated in cl 28.10. The stated aim of that clause includes to assist managers in the management of total sick leave and non-approved absences. The “Attendance Management Model”, established by cl 28.10(b), provides for four steps to be taken where there is a concern about an employee’s attendance at work. “Step 1” involves discussing with the employee any unsatisfactory attendance. “Step 2” involves arranging an interview in private with the employee who, relevantly, “is to be advised that they may invite a support person to this interview”. The discussion is to be held in confidence and aimed at problem solving: cl 28.10(b)(iii). Nowhere in cl 28.10 is provision made for a union delegate to attend an interview to act as an advocate for an employee.

258    The role of a support person is not defined in the Enterprise Agreement. It is, however, identified in Sydney Trains’ policy on “Employee Performance and Development”. As set out in Mr New’s email to Mr Salama of 4 November 2016, it provides that a support person, who may be a union delegate, “is an observer and is not to act as an advocate” (emphasis added). Under cross-examination, Mr Salama accepted that he understood the distinction between an advocate and a support person at the time of the Robertson 3 November 2016 meeting, but maintained that his role was as the former. In support of this contention, Mr Salama relies on the terms of cl 38.1 of the Enterprise Agreement which relevantly provides that Sydney Trains “acknowledges that Union delegates represent and speak on behalf of members in the workplace”. He submits that this provision entitled him to represent and speak on behalf of Mr Robertson during the Robertson 3 November 2016 meeting.

259    Whilst I accept that Mr Salama was a union delegate who attended the meeting, I consider that the meeting was conducted for the limited purpose identified by cl 28.10(b)(iii) of the Enterprise Agreement. Although cl 38.1 makes a general provision for union delegates to represent and speak on behalf of members in the workplace, in my view, that general provision should not be construed to supplant the specific regime provided for in cl 28.10. For the reasons given below, I consider that this view is supported by the text, context and purpose of the Enterprise Agreement, having regard to the industrial environment it aims to create.

260    Although the text of cl 38.1(b) acknowledges that “Union delegates represent and speak on behalf of members in the workplace”, it must be read in the context of the remainder of clause 38. Notably, the clause immediately following, cl 38.1(c), sets out a list of duties which Sydney Trains is to allow union delegates reasonable time to perform. Although this list is not expressly said to be exhaustive of the duties of union delegates, it notably does not refer to participating in attendance management interviews. Similarly, the text of cl 28.10(b)(iii), whilst specifically providing that a support person may be present during a “Step 2 Formal Interview”, is silent as to whether a union delegate can attend as an employee advocate.

261    I consider this to be significant having regard to the surrounding context to cl 28.10(b)(iii). As Sydney Trains submits, other provisions in the Enterprise Agreement, including those in cl 8 relating to the DSP, expressly permit union delegates or employee representatives to act in a representative role in particular circumstances, for example during disputes initiated under the DSP. As such, I consider that the fact that cl 28.10(b)(iii) is silent on this topic supports the construction advanced by Sydney Trains.

262    This view is further supported by the purpose of the regime established in cl 28.10. Relevantly, cl 28.10(b)(iii) provides that the interview is to be “in private with the employee”, “should be confidential, constructive and problem solving” and that issues should be discussed “with the employee” (emphasis added). This language supports the view that the policy and purpose of this clause is to ensure that the employee, here Mr Robertson, and his manager are able to engage directly in a constructive dialogue to resolve the attendance issues that have arisen. The support person is entitled to be present, but not to act as an advocate. To construe clause 38.1 as entitling the support person also to advocate on behalf of the employee would have the undesirable result of undermining the regime developed in the Enterprise Agreement for the management of attendance issues.

263    As noted above, in my view Mr Salama attended the Robertson 3 November 2016 meeting as a support person and not as a union delegate entitled to “represent and speak” on Mr Robertson’s behalf. As a consequence, Mr Salama did not have, and was not prevented from exercising, a workplace right to represent and speak on Mr Robertson’s behalf.

5.3    Workplace rights to initiate or participate in a process or proceedings under a workplace law or workplace instrument (s 341(1)(b))

5.3.1    The DSP processes

264    Mr Salama contends that he exercised his workplace rights by initiating a process or proceedings under cl 8 (the DSP) of the Enterprise Agreement, being a workplace instrument, in relation to: (1) the field start issue; (2) the request issue, which, as is apparent from section 4.9 of the chronology, is a part of the union rights dispute; and (3) the PCIP dispute.

265    Sydney Trains disputes that Mr Salama, in participating in these processes or proceedings, exercised any workplace rights. It submits that whether a person is able to initiate or participate in a process or proceedings under a workplace law or workplace instrument (under s 341(1)(b)) depends on the proper construction of the relevant workplace law or instrument. Sydney Trains contends that “dispute” in cl 8 of the Enterprise Agreement does not include a “purported dispute that was not bona fide and or for a proper purpose”. Otherwise, in Sydney Trains’ submission, “an employee would be free to escalate spurious disputes through the DSP…consuming valuable internal and public resources under the protection of section 340 despite the dispute having no proper foundation…endanger[ing] Sydney Trains’ operations”. On this basis, Sydney Trains’ contends that cl 8 did not give Mr Salama a right or entitlement to initiate such a “dispute” and accordingly he was not “able to initiate, or participate in” the process under cl 8 of the Enterprise Agreement for the purposes of s 341(1)(b).

266    I should note that in its opening submissions, without much elaboration, Sydney Trains suggested that construing cl 8 of the Enterprise Agreement as allowing illegitimate disputes to be raised would “be inconsistent with the approach in Shea (No 6) that should be adopted in relation to complaints and inquiries”. Similarly, in its closing submissions, in the context of addressing the appropriate construction of cl 8, Sydney Trains draws on Shea (No 6) at [630] and submits that an employee is not at liberty to “make mischievous, baseless and damaging accusations of misconduct in the workplace” or do so “in an abusive or threatening manner”. At first blush, this would appear to be a submission that I should apply the reasoning of Shea (No 6), a case concerning whether the requirements of good faith and proper purpose should be read into the definition of a “complaint or inquiry” for the purposes of s 341(1)(c)(ii), to Mr Salama’s claims under ss 341(1)(a) and 341(1)(b). However, Sydney Trains went on in closing to clarify that their “argument does not depend on extending Dodds-Streeton J’s reasoning to s 341(1)(a) and (b)…[and they] do not contend that a requirement of genuineness or legitimate purpose is to be implied into the statutory language in s 341(1)(a) or (b)”. Given this, I do not understand Sydney Trains to contend that the proper construction of cl 8 of the Enterprise Agreement should be informed by the reasoning in Shea (No 6) insofar as that decision relates to the proper construction of s 341(1)(c)(ii) of the FW Act. Instead, I understand Sydney Trains’ submissions on this point to be simply illustrative of the reasons why the construction contended for by Mr Salama ought be rejected.

267    Relevantly, cl 3 of the Enterprise Agreement provides that “dispute” means “any grievance, claim, problem or issue at work arising between the parties to the agreement”.

268    Clause 8 of the Enterprise Agreement is entitled “Dispute Settlement Procedure (DSP)”. It relevantly provides:

8.1.    The purpose of this procedure is to ensure that disputes are resolved as quickly and as close to the source of the issue as possible. This procedure requires that there is a resolution to disputes and that while the procedure is being followed, work continues normally.

8.2.    This procedure shall apply to any dispute that arises about the following:

(a) matters pertaining to the relationship between the Employer and Employees;

(b)     matters pertaining to the relationship between the Employer and the Employee organisation(s), which also pertain to the Agreement and/or the relationship between the Employer and Employees;

…

(e)    the operation and application of this Agreement.

    …

8.4.    Any dispute between the Employer and Employee(s) or the Employee’s representative shall be resolved according to the following steps:

STEP 1:    where a dispute arises it shall be raised in the first instance by the Employee(s) or their union delegate directly with the local supervisor/manager [who]...shall provide a written response...concerning the dispute within 48 hours advising them of the action being taken. The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.

STEP 2:    if the dispute remains unresolved, or if the dispute involves matters other than local issues, the General Manager Employee Relations or their nominee, a divisional management representative and the Employee(s) and/or the Employee(s) representative, union delegate or official shall confer and take appropriate action to arrive at a settlement of the matters in dispute within 72 hours of completion of Step 1 or the General Manager Employee Relations being notified of a dispute involving other than local issues.

STEP 3:    if the dispute remains unresolved, each party to the dispute shall advise in writing of their respective positions and negotiations about the dispute will be held between the Employee representative(s) or union official, the CEO of Sydney Trains or their nominee who will meet and conclude their discussions within 48 hours. The matter may be referred to Unions NSW for resolution of the dispute by any of the parties involved provided Unions NSW is chosen by the Employees as their representative.

STEP 4:    If the dispute remains unresolved any party may refer the matter to the Fair Work Commission for conciliation...

269    For the reasons that follow, I disagree with Sydney Trains’ contention that cl 8 should be interpreted to include a limitation that employees are only entitled to initiate a dispute under the DSP where that dispute is not unreasonable, vexatious or brought for an improper purpose.

270    First, nothing in the text of cl 8, as supplemented by the definition of “dispute” in clause 3, supports such a limitation. To the contrary, “dispute” is given a broad definition in cl 3, and although cl 8.2 limits the subject matter of disputes to which the DSP applies, it notably does not do so by reference to whether they are unreasonable, vexatious or brought for an improper purpose.

271    Secondly, I consider it significant that cl 8.4 provides a clear procedure under which disputes are to be swiftly resolved. As Mr Salama submits, within this procedure are checks and balances, including the imposition of relatively short deadlines by which actions need to be taken, which function to minimise the risk of disputes, however spurious, becoming overly protracted. In my view, the four step process envisaged in cl 8.4 would enable an employer swiftly to consider and then reject unreasonably brought or vexatious disputes, such that there is no need to exclude them from the definition of “dispute” in order for the DSP to properly function.

272    Finally, I consider that this construction is consistent with the stated purpose of the DSP. Relevantly, cl 8.1 provides that the purpose of the DSP is “to ensure that disputes are resolved as quickly and as close to the source of the issue as possible”. To read in the limitation contended for by Sydney Trains would be to invite an employer to apply a filter to disputes lodged, the effect being that certain disputes would be left unresolved. I consider that this would create a real risk that certain legitimate disputes would be excluded from the DSP. In this way, I consider the construction propounded by Sydney Trains might operate to frustrate the operation of the DSP, which I consider would be contrary to the industrial relations environment which cl 8 seeks to create.

273    I note that Sydney Trains also submits in support of its construction that employees should not be able to shield themselves from adverse action by continually invoking the DSP. However, as the High Court made clear in BHP Coal at [19] (French CJ and Kiefel J) and [89] – [93] (Gageler J), there is no such protection where the motivation for the taking of adverse action is proven to be unrelated to the fact that an employee exercised a workplace right, irrespective of whether the adverse action can be characterised as being connected to the exercise of such a right.

5.3.1.1    The field start issue 25 June 2017

274    The factual aspects of the field start issue are addressed in section 4.12 above. It concerned Mr Salama’s request to have time to attend a union meeting and was addressed in the course of a number of emails between him and Ms Francisco from 19 June 2017 to 25 June 2017.

275    Sydney Trains contends that the DSP was not invoked by Mr Salama on this occasion, submitting first: that he “did not inform Ms Francisco that the issue was in dispute as required under Step 1”; and, secondly, he did not “frame his email to Mr New as Step 2”. In relation to the first, I consider that it is reasonable to infer from the email correspondence between Mr Salama and Ms Francisco that he had raised a dispute with Ms Francisco for the purposes of “Step 1”. In relation to the second, although Mr Salama’s email to Mr New did not specify in terms that he was escalating the dispute to “Step 2”, Mr New gave evidence that he acceded to Mr Salama’s request because he “did not want to prolong the issue by allowing the dispute to continue to Step 3, which would have caused [Ms Francisco] further stress”. From this evidence, it is clear that Mr New believed the matter had been escalated to him as a “Step 2” dispute. In my view, that is the version of events to be preferred. I consider that Mr Salama did invoke the DSP in this instance and in so doing exercised a workplace right pursuant to s 341(1)(b) of the FW Act.

5.3.1.2    The request issue/union rights dispute

276    As noted above at [245], the request issue substantially overlaps with the union rights dispute (the factual matters relevant to both are outlined in section 4.9 above). It will be recalled that on 17 May 2017 Ms Francisco notified Mr Salama by email that if he required additional time to perform his union duties he should request it. In response, Mr Salama sent an email on 18 May 2017 at 11.55am saying “your request appears to breach the EA 2014”, quoting parts of cls 38.1 and 38.2 of the Enterprise Agreement, and stating that “I am now placing this matter in a step 1 dispute” and requesting a response within 48 hours.

277    In his oral evidence, Mr Salama explained that the nub of his complaint was that he considered that Ms Francisco’s request was inappropriate, because the Enterprise Agreement recognises that as a union delegate or HSR he could receive a phone call while at work. His position was then clarified:

There’s nothing in the Award that says, “At any point in time at any point in the day whenever you choose you can undertake your union duties”. There’s nothing in the Award that says that – sorry, in the Enterprise Agreement?---Not in those words, no, but it says that my position would be recognised and I have the capacity to represent the employees or the members.

But she’s not saying you can’t?---She is, basically. She’s saying that I need her permission every time.

It appears to be on this basis that Mr Salama initiated the DSP, a point which I address in more detail in section 7.3 below with respect to whether there was a breach of cl 38 of the Enterprise Agreement.

278    In adopting that position, in my view, Mr Salama misunderstood the communications that he had received from Ms Francisco. At no point did Ms Francisco indicate that he needed permission from her every time he wished to attend to a union matter and there is no evidence that Mr Salama was ever thwarted in attending to his union duties. Irrespective of this, however, in my view, Mr Salama invoked a dispute that fell within cl 8 of the DSP. I accept that in so doing, Mr Salama exercised a workplace right.

5.3.1.3    The PCIP dispute

279    As set out in section 4.11 above, Ms Francisco informed Mr Salama at a meeting on 1 June 2017 that he would be placed on a PCIP. In a later meeting on 20 June 2020, Ms Francisco attempted to give Mr Salama a copy of the PCIP document but he refused to take it. Later that day, Ms Francisco emailed Mr Salama a copy of the PCIP. The following day, on 21 June 2017, Mr Fozzard emailed Ms Francisco and notified her of a “Step 1” dispute under cl 8 of the DSP with respect to the issuing of the PCIP. In his email, Mr Fozzard contended that Mr Salama had not yet been informally counselled and, consequently, imposing the PCIP on him denied him procedural fairness. This dispute was then escalated to “Step 2” and “Step 3”.

280    Mr Salama contends that the initiation of this dispute by Mr Fozzard, and Mr Salama’s subsequent participation in the DSP process, involved the exercise of a workplace right. For similar reasons as stated above in relation to the field start and request issues, I accept that this is so.

5.3.2    The stop bullying proceedings

281    The stop bullying proceedings are introduced in section 4.10 above. They were brought pursuant to s 789FC(1) of the FW Act which provides:

A worker who reasonably believes that he or she has been bullied at work may apply to the FWC for an order under section 789FF.

282    Section 789FD(1) provides:

A worker is bullied at work if:

(a) while the worker is at work in a constitutionally-covered business:

(i) an individual; or

(ii) a group of individuals;

repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and

(b) That behaviour creates a risk to health and safety.

283    Mr Salama contends that by initiating and participating in the stop bullying proceedings in the Fair Work Commission, he exercised a workplace right to initiate or participate in a proceeding under a workplace law within the meaning of s 341(1)(b). Sydney Trains disputes this, and contends that determining whether the stop bullying proceedings involved the exercise of a workplace right depends on the proper construction of the workplace law, here the FW Act, said to enable it. More specifically, Sydney Trains submits that, because Mr Salama did not hold a reasonable belief that he was being bullied at work within the meaning of ss 789FC(1) and 789FD of the FW Act, he did not commence the stop bullying proceedings in the Fair Work Commission for a legitimate purpose and, accordingly, this did not constitute an exercise of a right within the meaning of s 341(1)(b) of the FW Act.

284    Sydney Trains develops its argument by reference to the language used in Mr Salama’s application, which is set out in section 4.10 above. It notes first, that in the application Mr Salama asserts, in the present tense, that while carrying out his duties “as a Union Delegate and HSR, I am constantly being harassed and bullied by several layers of management”. It submits that in the application, Mr Salama was required to provide details “of each person who you allege is engaging in bullying behaviour”. This, Sydney Trains submits, is consistent with the purpose of the application, in that it must relate to repeated behaviour which creates a current risk to health and safety, referring to s 789FD(1)(b). However, in relation to the allegations against Ms Sweeting, Mr Salama could have had no legitimate concerns, because he had had no dealings with her since November 2016. Mr Keech had not been his senior Transport Officer since August 2016, and leaving aside the uniform reimbursement issue in May 2017, Mr Salama had had no interactions with him. In relation to Mr New, the allegation was that he had been “yelled at” by him and handed an unidentified letter that has not been produced. Sydney Trains submits that in respect of neither has any evidence been led by Mr Salama. Sydney Trains submits further that the initiation of the stop bullying proceedings formed part of a pattern of conduct by Mr Salama where he would bring disputes and threaten proceedings whenever he would come under scrutiny. In this regard, it refers to the conduct concerning the disputes with Mr Keech to which I have referred above (see sections 4.1, 4.2 and 4.8), the oral evidence of Ms McKendry that when she tried to talk to him about issues he would raise a dispute and demand formality, and systematic attempts to embarrass and belittle Ms Francisco while she sought to manage his performance. Sydney Trains submits that it may be inferred that Mr Salama did not believe that he was being bullied at work and that he made the application to seek to avoid participating in a performance management process with Ms Francisco.

285    Mr Salama submits that the motivation for the initiation of the stop bullying proceedings is of no consequence. He submits that if the application was commenced frivolously, vexatiously or without reasonable cause, then it was for the Fair Work Commission to use its processes to determine that this was so, and for Sydney Trains to seek to strike it out. Until then, the court must accept that commencing the stop bullying proceedings was an exercise of workplace rights. He also submits that the form of the application he filled in cannot take the place of the provisions of s 341, which define the employee’s workplace rights.

286    Mr Salama responds to the factual propositions put by Sydney Trains by noting that, although Mr Keech and Ms Sweeting had not had recent regular interaction with him, the reason for his complaint was based on the potential they might have some in the future. He submits that the stop bullying proceedings were filed at a time proximate to the uniform reimbursement dispute, when his PDP rating of “2” was proposed and when the PCIP letter from Ms Francisco was sent.

287    There is some force in the criticisms made by Sydney Trains of the conduct of Mr Salama in instigating the stop bullying proceedings. Certainly, whilst he couched his complaint in terms that bullying conduct was presently taking place:

(1)    Mr Salama accepted in cross-examination that Mr Keech had not been his manager for over six months. The rostering complaint had arisen prior to then and had been referred back to Mr Salama’s managers by the WCIU as it considered it simply related to usual processes and day to day operations. The only other relatively proximate event the subject of the complaint was the uniform reimbursement dispute, identified in 4.8 above, which was, on any view, utterly trivial. Indeed, in his oral evidence, Mr Salama accepted that he did not consider that there was any current bullying behaviour by Mr Keech;

(2)    The evidence did not disclose that Mr Salama had had any dealings with Ms Sweeting since November 2016. He accepted in cross-examination that at the time of the complaint she was not engaged in bullying behaviour against him;

(3)    In relation to each of Mr Keech and Ms Sweeting, Mr Salama gave evidence that he filed the complaint because he was concerned only that he may come into contact with them at work in the future and that they might in the future engage in bullying conduct towards him;

(4)    The complaint made against Mr New apparently concerned Mr New “yelling” at Mr Salama but that allegation was not the subject of any affidavit evidence by Mr Salama or otherwise supported.

(5)    The complaint against Ms Francisco was made, he said, on the basis he had been threatened “several times” by her because she considered his sending of emails “in line with my duties as a Union Delegate and HSR” to be inappropriate and disruptive to his position as a Transport Officer, and that she had “now requested that [he] have a formal step 1 PCIP with her and another Team Manager in this regard”. That complaint concerns events contemporary to the filing of the stop bullying proceedings, which are set out in the chronology. In my view, it is apparent that Ms Francisco’s concerns about Mr Salama’s conduct in sending emails was not because they may have concerned his role as a union delegate or HSR (many did not, and concerned unrelated matters) but rather because she had repeatedly counselled him that it was not necessary or appropriate to escalate disputes beyond herself when raising matters in the first instance. Furthermore, I accept Ms Francisco’s evidence that her invitation for Mr Salama to attend a formal counselling session came at a time when she wished to take steps to indicate to Mr Salama the difficulties that his behaviour caused within Sydney Trains and to counsel him in a manner to ensure that his behaviour was ameliorated.

288    When the above matters are considered with Mr Salama’s evidence in chief to the effect that he commenced the stop bullying proceedings pre-emptively, to stop what he describes as “a process that was evolving of seeking to force [him] from his employment”, the allegations made by Mr Salama in the stop bullying proceedings addressed alleged conduct that may, objectively, be viewed as out of date, and commenced for ulterior purposes. Certainly the course of conduct identified in section 4 above demonstrates that Mr Salama was argumentative and combative in his dealings and did not hesitate to rely on his workplace rights in order to pressure those in senior positions to accede to his requests. Relevant examples include his conduct in the uniform reimbursement dispute (see section 4.8), which cannot on any sensible view reflect a genuinely held grievance on the part of Mr Salama, and the field start issue (see section 4.12) which bears a similar characterisation.

289    The question posed by the submission advanced by Sydney Trains is whether Mr Salama “reasonably believe[d] that he had been bullied at work...” within s 789FC(1). Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture: George v Rockett [1990] HCA 26; 170 CLR 104 at 115-116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). If the worker has a belief that is founded on considerations or views reasonably open (even if contested as incorrect by others) that may well found a conclusion that the worker has a reasonable belief. On the other hand, if it can be shown that the belief of the worker appears to be based on considerations or views that are unreasonable, untenable, irrational or baseless, it may be difficult to conclude that they have a reasonable belief: see by analogy Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; 257 FCR 62 at [69] (Allsop CJ) in the context of r 7.23 of the Federal Court Rules 2011 (Cth) where, in order to obtain preliminary discovery, a prospective applicant must demonstrate that it “reasonably believes that [it] may have the right to obtain relief...”.

290    The present case does not involve the hearing of the stop bullying proceedings, and Mr Salama has not presented his evidence in that application (and will not do so, given that the proceedings have been dismissed). However, Sydney Trains’ submission was squarely foreshadowed in its defence in these proceedings, where it pleaded that the stop bullying application was initiated in bad faith and for an ulterior purpose. Mr Salama has taken the opportunity to ventilate such matters as he considered appropriate in answer. There can be no question that the issue of the proper basis for commencing the stop bullying application was raised.

291    In the circumstances, it is open to me to conclude that the stop bullying application was lodged in direct retaliation to the attempts by Sydney Trains to take steps in accordance with its normal management procedures by providing Mr Salama with counselling as a consequence of his repeated refusal to follow reasonable management directions and his failure to communicate in a manner that was in accordance with its Code of Conduct. Taking into account the history of his dealings and my impressions of Mr Salama, it is my view that he did not have a reasonable belief that he was being bullied at work. Rather, it is my view that he implemented that process tactically and for the ulterior purpose of thwarting reasonable management action.

292    In such circumstances, it may be concluded that he was not exercising a workplace right, because the state of belief required before an application may be made under s 789FC(1) of the FW Act had not been attained. However, for present purposes I nonetheless shall proceed on the assumption, contrary to my view, that in commencing those proceedings Mr Salama did exercise that right.

5.4    Workplace rights in respect of “complaints and inquiries” (s 341(1)(c)(ii))

293    I have noted above (in section 5.1) that Mr Salama appears to have abandoned reliance on the field start and request issues as workplace rights under s 341(1)(c)(ii). Whether or not he did is of no moment because in section 5.3.1.1 and 5.3.1.2, I determined that the field start and request issues involved the exercise of workplace rights pursuant to s 341(1)(b) of the FW Act. It is unnecessary to address these issues further.

294    The factual background to the notification issue is addressed in section 4.14 above. It will be recalled that it involved an email from Ms Francisco informing Mr Salama that he should notify her of meetings that he needed to attend so that arrangements could be made in advance. Mr Salama responded, accepting that he needed Ms Francisco’s release before attending union delegates’ meetings, and seeking clarification on procedure, because he had thought that if a manager had organised the meeting, then other TTMs would be aware that it had been arranged. Ms Francisco responded, confirming that he should inform her directly of a meeting that has been arranged.

295    Mr Salama contends that his conduct in relation to the notification issue constituted the making of an inquiry with s 341(1)(c)(ii).

296    Sydney Trains contends that there are a number of reasons why Mr Salama did not exercise a workplace right within s 341(1)(c)(ii). At the outset, Sydney Trains submits that in order to rely on s 341(1)(c)(ii), it is necessary to identify the source of the entitlement said to enable the making of an inquiry, citing PIA Mortgage at [14]. Mr Salama accepted that this was a correct statement of the law, submitting that “a complaint made under s 341(1)(c)(ii) of the FW Act [needs] to be underpinned by a statutory or contractual requirement or right”. Sydney Trains submits that Mr Salama failed to identify the source of his alleged right or entitlement to make the inquiries he relied upon. There is force in this argument. I have been unable to locate in Mr Salama’s submissions any reference to the source of his entitlement to make the inquiries that he did of Ms Francisco in relation to the notification issue. However, in the event that I am wrong on this question, I proceed to consider Sydney Trains’ other submissions as to why Mr Salama did not make any complaints or inquiries.

297    Sydney Trains submits that Mr Salama’s “emails did not convey complaints or inquiries in the sense of articulating a grievance in a manner that invited a dialogue with or resolution by Ms Francisco”. In my view, this submission is correct.

298    The relevant email sent by Mr Salama reads as follows:

Regarding meetings that are requested by members or delegates, such as the one I asked for tomorrow, it is quite understandable as you may not be aware of these meetings and I need your release to attend. However, it was my understanding that if a manager had organised the meeting and sent out the invites that the TTM's would have already been aware. Just seeking clarity on procedure, can you please confirm if this is correct as it would be counterproductive to have confirmation from two different sources for the same event, thank you.

299    In Shea (No 6), Dodds-Streeton J provided a summary in relation to the requirements for s 341(1)(c)(ii) of the FW Act in which she identified at [29(a)] that a complaint for the purposes of that sub-section is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation. It must also be made in good faith and for a proper purpose: Shea (No 6) at [29(c)]. Similar reasoning should be applied in respect of inquiries.

300    I am unable to see how the exchange identified as the notification issue falls within the definition within the sub-section. It is not a complaint in the sense of conveying a grievance or finding of fault, nor do I consider it to constitute an inquiry, in that it did not genuinely raise a question for determination or resolution by Ms Francisco. Although Mr Salama framed his email as one “just seeking clarity on procedure”, he then immediately went on to ask for confirmation that his view was correct, arguing that the contrary view would be “counterproductive”. At best, I consider this email to be a rhetorical question identifying what Mr Salama “understood” to be the position regarding in what circumstances he needed to notify Ms Francisco of his attendance at meetings.

301    Accordingly, I do not accept that Mr Salama exercised a workplace right in respect of the notification issue. However, in the event that I am wrong about this, I have nonetheless assumed that the notification issue involved the exercise of a workplace right for the purposes of determining whether the adverse action was taken for a proscribed purpose.

5.5    Fact of membership and office with RTBU (s 346(a))

302    Mr Salama also contends that he is entitled to the protection in s 346(a) against adverse action being taken because he was an officer or member of an industrial association. I accept that, as a delegate and member of the RTBU, Mr Salama was entitled to this protection.

6.    THE REASONS FOR THE ADVERSE ACTION

6.1    The decision-makers

303    There is no dispute that Mr Walsh made the decision to send the show cause letter and to suspend Mr Salama. Nor is there any dispute that Mr Walsh asked Mr Kable for approval to dismiss Mr Salama and that Mr Kable provided that approval pursuant to authority delegated to him by Sydney Trains.

304    Mr Salama contends that the decision to dismiss was made by Mr Walsh alone or, alternatively, that it was made by Mr Walsh and Mr Kable as joint decision-makers. Sydney Trains submits that Mr Kable, despite acting on the recommendation of Mr Walsh, was the sole decision-maker when it came to the dismissal.

305    The question of whether there is more than one decision-maker, and the identity of the decision-maker or decision-makers, is one of fact. It is for the court to determine in whose mind or minds are to be found the operative mind of Sydney Trains in making the decision to dismiss: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; 234 IR 139 at [26] and [29] (Gray J). This involves consideration of the conscious reasoning process of those who had a material effect on the ultimate outcome to determine whether their reasoning processes were free of the alleged prohibited reason or reasons: Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014; 253 IR 166 at [121] (Reeves J); Red Cross v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332 at [90] (Greenwood, Besanko and Rangiah JJ). In a case where two officers are concerned in the solution of an administrative problem and are working jointly to solve it and decide what the corporation is to do and are working in harmony and in full confidence, the one with the other, the mind of the corporation is to be found in the course of conduct agreed upon between them and the reasons which in the end are the operating reasons for the policy agreed upon: Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 at 19 (Smithers J).

306    In the present case, the relevant actors are Mr Walsh and Mr Kable. Mr Walsh was the source of the show cause letter, the briefing note and the provision of material to Mr Kable. He also provided a verbal briefing to Mr Kable. Whilst I accept Mr Kable’s evidence that he brought an independent mind to the consideration of the question of whether or not to dismiss Mr Salama, and in that sense did not “rubber stamp” the decision, in my view he and Mr Walsh co-operated in the decision in the sense that Mr Walsh provided the factual information relevant to the making of the decision and recommended the course of action ultimately taken. It was Mr Walsh who formed the view that Mr Salama had not complied with his obligations as an employee, as is evident from the contents of the show cause letter and the briefing note. That evaluation is one that Mr Kable was not in a position to make. Mr Kable considered the information that he was supplied and gave the final approval for the decision.

307    In my view, the correct analysis is that Mr Kable and Mr Walsh were joint actors in the decision to dismiss. Whilst Mr Kable is the one who had the ultimate authority to authorise the dismissal on behalf of Sydney Trains, he relied on Mr Walsh’s evaluation of the performance of Mr Salama in reaching the decision. The position is somewhat analogous to the facts set out in Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 at [37] (Lee, Madgwick and Gyles JJ). Accordingly, if either Mr Walsh or Mr Kable was actuated or influenced by a prohibited reason in taking the action, Sydney Trains will not have discharged its onus of proof: Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [78] (Katzmann J).

6.2    Why was the adverse action taken?

6.2.1    The submissions

308    Mr Salama pleads that the adverse action was taken because he had, or had exercised or proposed to exercise, one or more workplace rights or because he was a member of or held an office in an industrial association. As I have noted, the relevant workplace rights or industrial activities upon which he relies are alleged to have arisen from the following (to which I refer below as the prohibited reasons):

(a)    The Robertson 3 November 2016 meeting;

(b)    The union rights dispute;

(c)    The field start issue;

(d)    The request issue (which substantially overlaps with the union rights dispute);

(e)    The PCIP dispute;

(f)    The notification issue;

(g)    The stop bullying proceedings; and/or

(h)    The fact of his position as a member and officer of the RTBU.

309    Although I have concluded that with respect to (a), (f) and (g) that Mr Salama did not exercise workplace rights, as foreshadowed earlier in my reasons, I nonetheless proceed on the basis that these did involve the exercise of workplace rights.

310    Mr Salama correctly submits that Sydney Trains is required to discharge the onus placed upon it by s 361(1) of the FW Act to establish that in reaching its decisions to issue the show cause letter, and to suspend and then dismiss him, it was not actuated by one or more of the prohibited reasons and that any one or more of the prohibited reasons were not substantial or operative reasons for those decisions.

311    Mr Salama submits that the reasons Sydney Trains took the adverse action are set out in the show cause letter, which was relied upon by Mr Walsh and Mr Kable in their affidavits. He notes that the show cause letter, under the heading “Your conduct and behaviour”, identifies seven matters and that Mr Walsh gave evidence that he relied on those matters as well as the “history” of the matter. He contends that each of the listed items in the show cause letter and the history must stand as constituting “a substantial and operative reason”. He submits that “it follows” that the adverse action was taken for prohibited reasons because the seven itemised matters in the show cause letter included workplace rights. For this reason, he submits that even if the reasons set out in the show cause letter are accepted in their entirety, the claims under ss 340 and 346 are made out.

312    Mr Salama also submits that the reasons in itemised paragraphs (5) to (7) in the show cause letter do not themselves, whether in combination with each other or otherwise, provide a basis to support a termination of employment. He submits that this “raises the question” as to what occurred that was not already known to Sydney Trains that led to his suspension and subsequent dismissal. He submits that any reliance on the initiation or participation in a process or proceeding arising under the FW Act, under the Enterprise Agreement or as a result of his role as a union delegate would be a prohibited reason.

313    Having made these submissions, Mr Salama did not directly challenge the credit of Mr Walsh or Mr Kable. Nor did his counsel in cross-examination put it to them that the reasons set out in the show cause letter and (in the case of Mr Kable) the briefing note were not the true reasons for the adverse action. Rather, the case advanced by Mr Salama is that, properly understood, the show cause letter stands in effect as an admission of the operative reasons the adverse action was taken, and that these reasons included a prohibited reason.

314    Sydney Trains submits that Mr Walsh and Mr Kable gave consistent, and largely unchallenged, evidence that their reasoning was articulated in detail in the show cause letter and, in the case of Mr Kable’s acceptance of Mr Walsh’s decision to dismiss, the briefing note and its annexures. It submits that by their direct evidence the decision-makers have discharged the burden imposed by s 361, and that no contrary inferences are available to be drawn.

315    Sydney Trains submits that the evidence reveals that the decision-makers’ reasoning was informed by four main concerns arising from facts not in dispute in the proceedings, namely:

(1)    A concern for the health and safety of other employees arising from Mr Salama’s behaviour;

(2)    The fact that concerns had been raised with Mr Salama over a long period regarding his behaviour and his behaviour had not improved;

(3)    The pattern of intemperate arguing with, and challenging of, decisions conveyed to him; and

(4)    Despite having been put on notice of these concerns in the detailed show cause letter, Mr Salama made no attempt to remediate or to demonstrate any insight into his behaviour.

316    Sydney Trains contests the approach to the show cause letter adopted by Mr Salama. It submits that its contents must be considered as a whole and in the light of the history of the matter. In this regard, it submits that it is clear from the context of the letter that each of the seven itemised points are examples of how, in the view of Mr Walsh, Mr Salama failed to respond appropriately to attempts to assist him to improve his conduct and were examples of conduct demonstrating a failure to meet the expectations set out in Ms Hole’s letter (set out in more detail in [143] above), the Code of Conduct and his position description. Contrary to the submission advanced by Mr Salama, Sydney Trains submits that the seven itemised matters cannot be read as essential links in a chain of reasoning such that each of them independently and read alone must be treated as a “substantial and operative” reason for the decisions to take the adverse action.

6.2.2    The stated reasons for the decisions

317    Mr Walsh gives affidavit evidence explaining the genesis of his decisions to issue the show cause letter, to suspend Mr Salama and to seek the approval of Mr Kable to dismiss him. He states that the reasons for the first two decisions are explained by the history set out in his evidence and as set out in the show cause letter. He says that the reason for his recommendation of dismissal relies on the history of the matter as so explained, the show cause letter and Mr Salama’s response to the show cause letter.

318    Mr Kable gives evidence that the reasons for the decision to authorise the termination of Mr Salama are those in the briefing note and its annexures, which included the show cause letter, that he was provided with by Mr Walsh.

319    In the sections below I first examine the evidence given by Mr Walsh before turning to that of Mr Kable.

6.2.3    The evidence of Mr Walsh

320    Mr Walsh presented as a careful and honest witness whose evidence I generally accept.

321    In his first affidavit, Mr Walsh sets out the circumstances giving rise to the reasons set out in the show cause letter and which led him to decide to issue it to Mr Salama. He supports his evidence by exhibiting emails and letters to which he refers, which, I find, generally corroborate the evidence that he gives. For the most part, the most relevant emails and letters are referred to in some detail in the chronology in section 4 above, and what follows provides a brief outline of their content, together with the evidence of Mr Walsh, for the purpose of analysis.

322    Despite the fact that Mr Walsh was responsible for over 950 staff, and that Mr Salama’s role of Transport Officer placed him at four levels of reporting below Mr Walsh (Mr Salama’s direct line managers being Mr McClifty, Ms Francisco, Mr New and then Mr Walsh), Mr Walsh had personal knowledge of events leading to the issue of the show cause letter. He gives evidence of several matters that weighed on his decisions to issue the letter and to suspend Mr Salama.

323    First, shortly after commencing in his position as Deputy Executive Director, in late 2016 he was aware that there were “challenging relationships” in Mr Salama’s work team, 5B. He was aware that a mediation had been conducted by an external consultant and that a letter had been sent by Ms Hole on 9 February 2017, set out in section 4.3 of the chronology, to the members of Team 5B (including Mr Salama) explaining the need to maintain suitable interpersonal relationships.

324    Secondly, from late 2016, Mr Salama commenced copying him into emails in relation to issues and disputes arising in the fare compliance unit. Mr Walsh formed the impression from their content that, despite Ms Hole’s reminder, Mr Salama was not communicating in an appropriate manner, including by respecting his own line management in the first instance, and in his dealings with his line managers. His impression was that Mr Salama did not interact with his colleagues in a courteous, friendly manner, and that this emails were argumentative, often combative and not accepting of the reasonable directions of his managers. He sent an email on 10 April 2017 requesting Mr Salama and Mr Skundric to cease copying him in on emails, noting that Mr Walsh would handle matters that had been escalated to “Step 3” of the DSP. In his oral evidence, Mr Walsh indicated that he had earlier made a verbal request not to be sent emails not suitably addressed to him. It is apparent that Mr Walsh wished to ensure that the hierarchy of management would be observed by Mr Salama. I accept this evidence.

325    In cross-examination it was put to Mr Walsh, who agreed, that the tone of a number of emails sent by Mr Salama after February 2017 was “cordial”. That was not, however, to the point. As Mr Walsh said in his evidence in chief and expanded on in cross-examination, it was his practice of sending numerous emails to “argue the toss” for no apparent legitimate purpose that caused Mr Walsh concern.

326    Thirdly, Mr Walsh was aware that after February 2017 there continued to be issues concerning Mr Salama’s behaviour and that, on 18 May 2017, Ms Francisco had written to Mr Salama, requiring him to attend a first formal counselling session.

327    As Mr Walsh explained, it was Mr Salama’s outright rejection of the proposed remedial action to which he was referring in item (1) of the show cause letter, when he said that Mr Salama had “failed to ‘Constructively receive feedback on work performance and participate in/attend performance review meetings…’”.

328    Mr Walsh gave evidence at the hearing, which I accept, that he was unaware that, on 21 June 2017, Mr Fozzard of the RTBU had raised a dispute in relation to the PCIP process commenced by Ms Francisco.

329    Importantly, I accept that Mr Walsh chose to identify the 18 May 2017 incident and what followed because it provided an example of Mr Salama refusing to accept or participate in a process of counselling to address his behaviour in relation to issues that had previously been raised by Ms Francisco. Mr Walsh was aware (by reason of the content of the letter dated 7 June 2017 but handed to Mr Salama on 20 June 2017) that previously, on 10 February, 27 April and 9 May 2017, Ms Francisco had informally counselled Mr Salama about how he should communicate within Sydney Trains in an appropriate manner following his several failures to do so.

330    Fourthly, three days after the 18 May 2017 letter, on 21 May 2017, Mr Salama commenced the stop bullying proceedings. Mr Walsh gives evidence that whilst he “had no issue” with the fact that Mr Salama was entitled to commence genuine proceedings in the Fair Work Commission, he was concerned about the timing of the application and the fact that the allegations included matters which were historical and most of which had already been investigated internally at Sydney Trains and found to be unsubstantiated. He formed the view that the stop bullying proceedings were “disingenuous and [were] in fact an illustration of the [Mr Salama’s] continued pattern of behaviour of not being able to accept reasonable management action” and that Mr Salama was “unable to trust and effectively work with three levels of management above him”.

331    Mr Walsh was not challenged in cross-examination in relation to this evidence. I accept that Mr Walsh was aware of the commencement of the stop bullying proceedings at the time of his decisions. I find that his concern about those proceedings concerned their timing (as an apparent response to Ms Francisco’s letter of 18 May 2017 inviting him to a first formal counselling session) and that his view that the application was filed vexatiously and in an attempt to avoid reasonable management action was genuinely held. There was, as I set out in section 5.3.2 above, a rational basis for that view, but in any event, I am satisfied, and find, that Mr Walsh identified the stop bullying proceedings in the letter because he genuinely held the view that they were not filed for legitimate reasons, and were indeed filed for the purpose of avoiding reasonable management action, as he says in items (2)(a) and (b) of the show cause letter, a point he develops in (2)(c)-(f).

332    I am satisfied that Mr Walsh raised the stop bullying proceedings in the show cause letter purely to illustrate what he considered to be another example of Mr Salama’s ongoing failure to comply with the required standards set out on the first page of the show cause letter by reference to Ms Hole’s February 2017 letter. I do not consider that it being mentioned in the show cause letter demonstrates that part of the rationale for the decision to take adverse action was a prohibited reason. Nor do I consider that the fact that Mr Salama had raised a workplace issue in the stop bullying proceedings formed part of the motivation for the decisions made by Mr Walsh.

333    Fifthly, in his evidence in chief, Mr Walsh identifies and exhibits a chain of email correspondence which commenced after Ms Francisco sought to invite Mr Salama to a first formal counselling session.

334    It commences on 25 May 2017 with email from Mr Salama’s RBTU delegate, Mr Skundric (set out above in section 4.11) where Mr Skundric requested that Mr Walsh give “urgent consideration” to alleged “adverse action” by Ms Francisco against Mr Salama. Mr Walsh directed him to his line manager, Mr New. On 26 May 2017, Mr Skundric declined to approach Mr New alleging that he was “complicit”. On 29 May 2017, Mr Salama picked up the correspondence, saying that Ms Francisco “is trying to force me to attend a meeting regarding my conduct”, and requesting a meeting with Mr Walsh once Mr Skundric was back from leave.

335    Mr Walsh informed him that Mr Salama should follow PCIP procedure and meet with Ms Francisco before him. Mr Salama responded on 30 May 2017 by contending that he was entitled to union representation by Mr Skundric, citing Vong v Sika. Mr Salama followed up this email with another the next day, saying to Mr Walsh that he “generally afford[s] a 48 hour window to respond, however...I request your urgent response...I will not be attending the meeting unless I am shown of my legal obligation to do so”.

336    Mr Walsh responded substantively to the Vong v Sika reference, and drew attention to cl 6.8.1 of the Performance Improvement Procedure which states that he was entitled to bring a support person not a particular support person. In his response of 31 May 2017, Mr Salama disagreed with that outcome and informed Mr Walsh that he would decline to meet with Ms Francisco.

337    Mr Walsh gives evidence that the communications summarised above “only reinforced my concerns regarding what appeared to be a complete breakdown in [Mr Salama’s] relationship with his line managers and his inability to accede to reasonable management action”. He was not directly challenged on this view. Indeed, in my opinion, his view is supported by the correspondence.

338    This theme is picked up in items (3) and (4) of the show cause letter. In (3), Mr Walsh identifies that on 20 June 2017 Ms Francisco issued Mr Salama with a letter outlining her expectations that he “listen to and follow reasonable instructions by those in supervisory or management positions, without constantly challenging, and arguing with, decisions conveyed to you”. He notes his view that this request was consistent with Sydney Trains’ values and expectations as to Mr Salama’s conduct.

339    In (4), he then summarises the chain of correspondence concerning the field start issue, summarised in the chronology at section 4.12 above. In cross-examination, it was again suggested to Mr Walsh that this was a cordial exchange and that it reflected a change in behaviour on the part of Mr Salama, following his receipt of the PCIP. Mr Walsh responded, credibly in my view, that whilst there was cordiality in the tone, he remained of the view that Mr Salama persisted in being argumentative and combative and failing to take reasonable directions from managers. I accept that this was a view genuinely held by Mr Walsh. Indeed, having regard to the correspondence to which I have referred, I consider it to be a rationally held view. On this basis, I am satisfied that the fact that Mr Salama exercised a workplace right with respect to the field start issue did not play any role in Mr Walsh’s decision to take the adverse action.

340    Sixthly, Mr Walsh explains that the catalyst for the suspension and show cause letter was the “managers are fair game” email from Ms Francisco, which Mr New forwarded to him on 27 June 2017 (see section 4.13 in the chronology above). Mr Walsh says that he had worked with Ms Francisco for a number of years and had the impression that she was ordinarily a resilient and fair person. He was alarmed and concerned about the safety and welfare of Ms Francisco and other members of his team whom he knew to be dealing with Mr Salama. He had himself experienced first-hand Mr Salama’s argumentative approach and unwillingness to accept lawful and reasonable directions from his superiors.

341    Mr Walsh’s evidence is that on 19 July 2017, the day after he returned from leave, he met with Mr New about Ms Francisco’s “managers are fair game” email. Mr Walsh exhibits a contemporaneous file note of that meeting, where he records his concern about the matters outlined in Ms Francisco’s email, and that Mr New informed him then that he was concerned about Ms Francisco’s health having regard to Mr Salama’s behaviour. The note concludes:

•    I am concerned about this continuing pattern of conduct/behaviour despite remedial action

•    I have been across some of the issues highlighted by [Ms Francisco] and concur with her views in relation to the motivation behind them.

•    I have a duty of care to [Ms Francisco] to ensure she is not subjected to unfair, harassing or unacceptable conduct or behaviour that may impact her health.

•    I will seek advice as to the most appropriate course of action given that prior interventions and attempts to remediate are seemingly proving futile.

342    In cross-examination and in closing submissions, Mr Salama suggests some insouciance on the part of Mr Walsh concerning Ms Francisco’s welfare, because he waited until after his leave to raise the “managers are fair game” email with Mr New. However, in my view, Mr Walsh credibly explained his delay and his regret for deferring his meeting with Mr New until after his return. Otherwise, it was not put to Mr Walsh that the views expressed in this note were not genuinely held. I find that they were.

343    In cross-examination, Mr Walsh was asked about item (5) of the show cause letter, which concerns matters raised in relation to the union rights dispute (see section 4.9 above). In the show cause letter Mr Walsh says that on 30 June 2017 he “was required to address a dispute you escalated to me in which again you challenged, and argued with, a reasonable instruction and decision conveyed to you by Ms Francisco”. Mr Walsh sets out the instructions given by Ms Francisco, to the effect that while on patrol she expected Mr Salama to be patrolling, and that if he required additional time to complete his union and other duties he should request it and she would assess and accommodate where feasible. He then records Mr Salama’s response (an accusation that the request appeared to be a breach of the Enterprise Agreement) and Mr Salama’s later clarification as to the breach he alleged, to the effect that Ms Francisco’s email “suggests that I should constantly seek your approval to fulfil my duties as HSR/Union Delegate”. Mr Walsh concludes by stating that there was no basis for that assertion and, in his view, that it amounted to a challenge to a reasonable instruction from Ms Francisco. I accept that Mr Walsh held a concern that Mr Salama had received an instruction that was quite reasonable, but had failed to accept or respond to it other than by making, in Mr Walsh’s view, spurious accusations of breach of the Enterprise Agreement.

344    There was evidence that, arising out of the union rights dispute, a request had been made of Mr Walsh by Mr Salama and other RTBU delegates to amend the wording of the Enterprise Agreement to clarify the position of delegates performing their duties on paid time. On 25 July 2017, the day after Mr Walsh had issued the show cause letter to Mr Salama, Mr Walsh denied this request. During cross-examination, Mr Walsh denied that this request had anything do to with the show cause letter issued to Mr Salama. I accept this evidence.

345    There is a minor dispute on the evidence as to whether Mr Walsh had previously said to Mr Salama that he would not need to seek permission each time he received a call in his role as a union delegate. Mr Walsh cannot remember the conversation, but contends that no one had suggested to Mr Salama that he had to make a request for permission for every call that he would receive as a union delegate. This is substantially consistent with the initial conversation which Ms Francisco deposes to having with Mr Salama during his 17 May 2017 PDP meeting where she said words to the effect that “[y]ou can take calls and answer emails during down-time in between trains”. Rather, Mr Walsh recalls suggesting to Mr Salama (and other union delegates) that, if he was regularly having to take calls or attend to union matters, it would be in his interests to keep his managers updated, so that when it came to his PDP assessments, the amount of time that he was spending on union related matters would not come as a surprise.

346    In my view, the correspondence exhibited to the affidavits of Mr Salama, Mr Walsh and Ms Francisco supports the view expressed by Mr Walsh, namely that neither Ms Francisco nor any other representative of Sydney Trains had informed Mr Salama that he must constantly seek approval in order to attend to RTBU matters. In this context, I accept that Mr Walsh believed that Ms Francisco’s direction was reasonable and that Mr Salama had no basis to argue or challenge it. I consider that this supports the view that Mr Walsh took the adverse action, not because Mr Salama had exercised a workplace right to invoke the DSP, but because he believed that Mr Salama was not able to follow reasonable directions issued by his managers.

347    In item (6) of the show cause letter, Mr Walsh refers to the notification issue as a further example of a failure on the part of Mr Salama to accept reasonable instructions without cavilling with them. In his oral evidence he defended, credibly in my view, Ms Francisco’s email of 4 July 2017, asking that Mr Salama inform her of all union meetings he needed to attend “so that suitable arrangements can be made in advance” (see section 4.14 above). He expresses the view that it was a reasonable instruction that Mr Salama nonetheless challenged. He suggested that although Mr Salama’s emails appeared to be quite cordial, given the context of what had been going on over a significant period of time, he was of the view that there was some gamesmanship happening. I accept that Mr Walsh genuinely held this view.

348    In item (7) of the show cause letter, Mr Walsh refers to an email exchange where Ms Francisco sent congratulations to staff on nominations to take place in a “Master Roster Review”. In response, Mr Salama sent a “reply all” email where he made allegations that those nominated had been “pro management”, disputed the selection process of candidates who were said to have been “hand picked by management”, and said that management had “once again broken an agreement we had”. Mr Walsh said that this was an argumentative and disrespectful email. He was not questioned on this view in cross-examination. In my view, he genuinely held this view which I consider is also well-supported by the text of the correspondence.

349    Mr Walsh gives evidence that based on the matters to which I have referred above and including the “managers are fair game” email from Ms Francisco, he decided to intervene and take immediate action, including to suspend Mr Salama. He provided the show cause letter to Mr Salama at a meeting on 24 July 2017. By that time he had formed the view that Mr Salama had failed to act in accordance with his obligations as an employee, as set out in the allegations of misconduct set out in the show cause letter. I accept that the allegations of misconduct made by Mr Walsh in the show cause letter arose because of Mr Walsh’s view that Mr Salama had demonstrated a failure to maintain the standards of behaviour set out in the Code of Conduct set out therein. It was those matters that motivated the decision to send the show cause letter and suspend Mr Salama.

350    Further, Mr Walsh gives evidence that when he received the response to the show cause letter sent on 31 July 2017 by Mr Salama’s solicitors at the time, he was disappointed that Mr Salama had failed to answer his letter with any demonstration of insight, willingness to take responsibility for his actions or an agreement to make a positive change. If he had done so, Mr Walsh would have considered his response and may have considered options other than dismissal. Mr Walsh gave written evidence, upon which he was not challenged in cross-examination, to the following effect:

In my view, [Mr Salama] failed to show any insight or reflection on the concerns raised in my letter. It was my belief, by virtue of his conduct, that [Mr Salama] believed he could not work with 3 levels of management and in my mind, that made the employment untenable. My view was that we had reached a point where there was an irretrievable breakdown of the relationship.

351    Mr Walsh subsequently prepared the briefing note for Mr Kable and recommended termination of Mr Salama’s employment. He gave evidence that:

I recommended that [Sydney Trains] terminate the employment of [Mr Salama] because despite remedial action and attempts to improve his behaviour and conduct over a period of time, [Mr Salama] had failed to demonstrate the required level of competence/suitability for his position. I also took into account [Mr Salama’s] response to the show cause letter of 24 July 2017 provided by his lawyer.

352    Contrary to the suggestions made in the submissions advanced by Mr Salama, it is apparent from Mr Walsh’s oral and written evidence that the “competence/suitability” to which Mr Walsh referred is not concerned with Mr Salama’s ability to perform the basic functions and tasks of a Transport Officer, but his ability to work within the management structure of Sydney Trains and to communicate in an appropriate manner.

353    In response to the allegations advanced by Mr Salama in this case, Mr Walsh specifically denies that he treated Mr Salama differently from, or less favourably to, other employees because he was a union delegate, because he was an HSR representative, because he assisted other employees in his role as union delegate or because he notified disputes under cl 8 of the Enterprise Agreement. He also specifically denies that any of his decisions were made for any of the reasons advanced by Mr Salama as to why Sydney Trains took unlawful adverse action.

354    I have formed the view that Mr Walsh gave consistent and credible evidence explaining his reasons for making the decisions to take adverse action against Mr Salama. To a large extent, his evidence was independently supported by the extensive documentary evidence in the form of email communications. I accept that the reasons for making his decisions to issue the show cause letter, suspend and then terminate Mr Salama from his employment, were as he stated in his affidavit material. More specifically, having regard to the presumption created by s 361(1) FW Act, I am satisfied, on the basis of his evidence, that Mr Walsh’s decisions were actuated by his view that Mr Salama had, over a period of time, demonstrated an inability to comply with Sydney Trains’ Code of Conduct and his position description insofar as it concerned the ability:

(a)    to maintain suitable interpersonal skills and communications;

(b)    to follow reasonable instructions issued by those in supervisory or management positions;

(c)    to constructively receive feedback on work performance and participate in and attend performance review meetings;

(d)    to work under instructions and as reasonably directed by relevant managers and to listen to and follow reasonable instructions without constantly challenging and arguing with decisions; and

(e)    to work collaboratively and as a member of a team.

355    I accept that parts of the show cause letter refer to Mr Salama’s conduct that involved his actions as a union delegate or involved the exercise of workplace rights. In this regard, I accept the evidence given by Mr Walsh that his motivation for issuing the show cause letter (and the steps he subsequently took) was not at all concerned with the exercise of those rights. The adverse action was taken for the reasons that I have outlined. Having regard to the whole of his evidence, including the cross-examination, I accept Mr Walsh’s evidence that the workplace rights asserted by Mr Salama did not play any role in his decision-making process.

6.2.4    The evidence of Mr Kable

356    Mr Kable gave evidence that on 7 August 2017 he received the briefing note from Mr Walsh which sought his approval to terminate the employment of Mr Salama. In cross-examination, he adhered to his evidence that he approved the recommendation made by Mr Walsh to terminate Mr Salama’s employment for the reasons set out in the briefing note, which he summarised as being because after remedial action and attempts had been made to improve his behaviour and conduct over a period of time, Mr Salama failed to demonstrate the required level of competence or suitability for his position. Mr Kable specifically denied that he approved the recommendation because of any of the workplace rights alleged by Mr Salama.

357    In cross-examination, Mr Kable gave evidence that he had no independent recollection of the meeting that he had with Mr Walsh at which he signed the briefing note. Having regard to the seniority of Mr Kable’s position within Sydney Trains, and his evidence in cross-examination and in chief, I accept that denial. Contrary to Mr Salama’s submission, I do not consider that the fact that Mr Kable had no recollection of the meeting undermines the reliability of his evidence that he authorised Mr Salama’s termination for the reasons stated in the briefing note.

358    The briefing note concentrates on the counselling provided to Mr Salama in relation to his inability to communicate appropriately in the workplace and his failure to co-operate in the remedial processes that had been put in place. Having regard to Mr Kable’s evidence, I accept that the reason for his decision to authorise the termination of Mr Salama’s employment was because notwithstanding various attempts to remediate and improve his behaviour in the workplace, Mr Salama had failed to demonstrate that he possessed the required level of suitability or competence for his position. I accept Mr Kable’s denial of any motivation or cause for the decision to arise from the exercise by Mr Salama of a workplace right within s 340(1) or industrial right within s 346 of the FW Act.

6.3    Conclusions in relation to the reason for the decisions

359    I accept the evidence of Mr Walsh and Mr Kable going to their decision-making processes and the reasons they gave for their decisions to issue the show cause letter, suspend and then terminate the employment of Mr Salama.

360    The facts in the present case upon which Mr Salama relies may to some extent be compared with those in BHP Coal. There, the employee was engaged in conduct that had the character of protected industrial activity in the form of waving a placard as part of a protest. However, he was not dismissed because he was involved in the protest, but because of what occurred in the context of the protected industrial activity.

361    In the present case, the seven examples given in the show cause letter make reference to conduct of Mr Salama that may, in some respects, be said to have arisen in the context of protected workplace rights or industrial activity in the form of (by reference to those items): (1) the PCIP dispute; (2) the stop bullying proceedings; (4) the field start dispute; (5) the union rights dispute/request issue; and (6) the notification issue. All of these events occurred while Mr Salama was an officer or member of an industrial association.

362    However, it is not necessary for the decision-makers to establish that the reasons for the adverse action are entirely disassociated from the relevant protected workplace right: Barclay at [62] (French CJ and Crennan J); De Martin at [303] (Wigney J). The protection afforded by ss 346(a) and 340(1) is not protection against adverse action being taken by reason of engaging in an act or omission that has the character of a protected industrial activity. It is protection against adverse action being taken by reason of that act or omission having the character of a protected industrial activity: BHP Coal at [92].

363    In the present case, I am satisfied that the decision to take the adverse action was not made for the reason that Mr Salama had engaged conduct having the character of protected workplace rights under s 341(1)(a)-(c) of the FW Act. Nor was the decision made for the reason that he was engaged in conduct having the character of protected industrial activity under s 346(1). Whilst in section 5 I have accepted that some of Mr Salama’s conduct can be characterised as involving workplace rights and industrial activity protected under ss 341(1)(a)-(c) and 346(1) of the FW Act, I am not satisfied that the adverse action (in part or in whole) was taken by reason that this conduct had the character of protected workplace rights or industrial activity. To the contrary, I am satisfied that no part of the decision to take the adverse action was for the reason that any of Mr Salama’s conduct had the character of protected workplace rights or industrial activity. I find that the decisions were made because in summary, in the view of Mr Walsh and Mr Kable, Mr Salama had demonstrated his inability or unwillingness to comply with the Code of Conduct, meet the requirements of his position description, work within the management structure of Sydney Trains and communicate appropriately with others. The consequences of Mr Salama’s conduct upon employees of Sydney Trains were telling, as Mr Walsh observed and as the “managers are fair game” email indicates.

364    I am conscious that Sydney Trains cannot escape the proscription in ss 340(1) or 346 by simply providing its own characterisation of the action that it took. I am also conscious that the reasons provided by Mr Walsh and Mr Kable as to why the adverse action was taken must be considered against the background of the totality of the evidence and any contrary inferences available on the facts. In this regard, Mr Walsh and Mr Kable cannot conveniently explain their decisions as being undertaken for reasons that elide the fact that one of the reasons the adverse action was taken was because Mr Salama had exercised, or proposed to exercise, his protected rights. However, having considered the written and oral evidence of Mr Walsh and Mr Kable, and having regard to the totality of the facts and circumstances of the case, I am persuaded that they have not done so.

365    I consider that Sydney Trains has discharged its onus under s 361(1) and I accept that the adverse action was not taken because Mr Salama exercised any workplace rights or due to the fact of his membership and office with the RTBU. I conclude that Sydney Trains’ decision to issue the show cause letter, suspend and subsequently terminate the employment of Mr Salama was not made for a prohibited reason, or reasons which included a prohibited reason. Accordingly, Mr Salama’s claims under ss 340(1) and 346 must be dismissed.

7.    ALLEGED CONTRAVENTION OF THE ENTERPRISE AGREEMENT

7.1    Introduction

366    Mr Salama pleads that during the term of his employment Sydney Trains was required to abide by the terms of the Enterprise Agreement and apply that agreement to its dealings with him insofar as it concerned his employment as a Transport Officer, his role as a union delegate and his role as an employee representative. Mr Salama alleges that Sydney Trains contravened cls 8 and 38 of the Enterprise Agreement. As a consequence, Mr Salama contends that Sydney Trains has acted in breach of ss 50 to 54 of the FW Act.

367    Sydney Trains does not dispute that Mr Salama’s employment was covered by the Enterprise Agreement, but denies the breaches alleged.

368    The List of Issues records that the alleged breach of cl 8 of the Enterprise Agreement involved the failure on the part of Sydney Trains to apply the DSP in the proper manner in relation to:

(a)    the union rights dispute; and

(b)    the PCIP dispute.

369    The alleged breach of cl 38 of the Enterprise Agreement is said to arise in relation to:

(a)    the Robertson 3 November 2016 meeting; and

(b)    the union right dispute.

370    The relevant terms of cls 8 and 38 of the Enterprise Agreement are set out in sections 5.2 and 5.3 above.

7.2    Consideration of the alleged breaches of cl 8 of the Enterprise Agreement

371    Mr Salama contends that Sydney Trains acted in breach of cl 8.4 of the Enterprise Agreement which relevantly provides:

STEP 1:    ...The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute.

372    He contends that Sydney Trains acted in breach of this clause by failing to maintain the status quo when it proceeded to terminate his employment without first resolving each of the union rights and PCIP disputes. More specifically, Mr Salama contends that Sydney Trains acted in breach of cl 8 of the Enterprise Agreement because, at the point in time when Sydney Trains terminated his employment, there was an ongoing dispute notified and, accordingly, the status quo was not maintained as required by cl 8.4.

373    Sydney Trains submits that both of these disputes were resolved prior to Mr Salama’s termination. It contends that this is a complete answer to the allegation.

374    In my view, this aspect of Mr Salama’s claim must fail for the following reasons.

375    First, cl 8 contemplates potentially four steps being taken in the course of a dispute notified between employer and employee. The “status quo” can only be required to remain static during the currency of the dispute.

376    Secondly, during the course of the union rights dispute, as evidenced by the email correspondence set out above in section 4.9 of the chronology, Ms Francisco attempted to resolve the dispute on 19 May 2017 after it had been escalated to “Step 1” by Mr Salama. It was then escalated to “Step 2” and addressed by Mr New on 26 May 2017. When Mr Salama escalated it to “Step 3”, Mr Walsh addressed the dispute in his email dated 30 June 2017 who concluded his communication with the words “I trust this concludes the matter”. No further communication was received by Sydney Trains in relation to this dispute. At that point, there was no basis upon which Sydney Trains could conclude that the dispute remained on foot and, consequently, that the dispute required the status quo be maintained.

377    Thirdly, a similar state of affairs arises in relation to the PCIP dispute (discussed above in section 4.11). It was notified by Mr Fozzard (acting on behalf of Mr Salama) on 21 June 2017 as a “Step 1” dispute. It was subsequently elevated to “Step 2” and then “Step 3”. However, I am satisfied that by the time of the show cause letter, Sydney Trains accepted that it had not been implemented. As much is clear from the show cause letter itself, which states that Sydney Trains had “sought” to place Mr Salama on a PCIP, but does not otherwise suggest that the PCIP was in place or had been acted upon. Subsequent email correspondence serves to confirm that this was so. To the extent that Mr Walsh may have suggested otherwise in his oral evidence, I consider that he was mistaken. Consequently, I consider this dispute to have been resolved by at least the time of the show cause letter.

378    Accordingly, the claims made by Mr Salama concerning breach of cl 8 of the Enterprise Agreement must be dismissed.

7.3    Consideration of the alleged breaches of cl 38 of the Enterprise Agreement

379    The first alleged breach of cl 38 is said to arise from the Robertson 3 November 2016 meeting, the details of which have been summarised in section 4.3 of the chronology. It may be recalled that Mr Salama contends that he was denied a right to represent Mr Robertson as a union delegate pursuant to cl 38 of the Enterprise Agreement. For the reasons set out in section 5.2 above, I have found that, as a matter of construction of cl 38.1 of the Enterprise Agreement, Mr Salama had no right to advocate for Mr Robertson as a union representative at the Robertson 3 November 2016 meeting. Accordingly, Mr Salama did not have the right he claims to have been denied. As such, this claim must fail.

380    The second alleged breach of cl 38 arises from the union rights dispute, in which Mr Salama contended that Sydney Trains had acted in breach of the Enterprise Agreement when, in her email of 17 May 2017, Ms Francisco had said “[i]f you require additional time to complete these extra duties, please request it and I will assess each request and accommodate where feasible”. This dispute arose in the context of Mr Salama’s rejection of Mr McClifty’s proposal to award him a “2” at a PDP meeting. Mr Salama sought to explain to Ms Francisco why his performance should not be so graded because, he said, his union duties required up to two hours out of a day. In response, Ms Francisco (at the “Step 1” stage), Mr New (at the “Step 2” stage) and then Mr Walsh (at the “Step 3” stage) each said that if he wanted additional time to attend to his duties, he should request it.

381    Mr Salama points to cl 38.1(c) of the Enterprise Agreement which requires that Sydney Trains “will allow union delegates reasonable time during working hours to perform the duties listed below”. He submits that Ms Francisco sought to apply the clause by requiring him to perform his primary duties as a Transport Officer and directed the use of down-time for union duties which could not reasonably be utilised by reason of standard operational requirements. The “simple issue”, as Mr Salama characterises it in his closing submissions, is whether Ms Francisco failed to apply cl 38.1(c) because she failed to “allow reasonable time during working hours”. He submits that provided Mr Salama was engaging in consultations it was not open to Sydney Trains to seek to limit the time he spent unless it was beyond “reasonable time”. He submits that because it was not possible to determine in advance whether a consultation would take more than “reasonable time”, Ms Francisco had breached cl 38.1 by seeking to place the restriction she did on Mr Salama’s time to attend to union duties.

382    The difficulty for Mr Salama’s argument is that it is largely inchoate. Nowhere in his pleaded case or his written submissions does he identify any union duty or HSR duty that he was unable to perform following from Ms Francisco’s 17 May 2017 request that he inform her when he needed additional time to complete his non-Transport Officer duties. He identifies no conduct or event where he, as a union delegate, was deprived of the ability to take “reasonable time during working hours” to represent or consult with a member in the workplace. Indeed, the evidence points in the other direction. In cross-examination, he accepted that he had always been given approval to attend to his duties as a union delegate or HSR representative and, that during the course of 2017, Sydney Trains allowed his requests for 90 hours for him to attend to union duties and other activities not related to his primary responsibility as a Transport Officer.

383    In this context, Mr Salama seeks to put his argument at a theoretical level, and in particular to assert that, as a union delegate, cl 38.1(c) afforded him a “right” to take “reasonable time during working hours” on union duties without seeking the permission of management and that Ms Francisco refused him that right by making the request that she did.

384    At that level of abstraction the claim must fail. I accept Sydney Trains’ submission that what constitutes “reasonable time” for the purposes of cl 38.1 needs to be determined on a case-by-case basis having regard to Mr Salama’s circumstances and Sydney Trains’ business: see by analogy Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2019] FCA 2145 at [46] (Collier J). I also accept the submission advanced by Sydney Trains that “reasonable time” within cl 38.1(c) must be compatible with the performance by Mr Salama of his ordinary duties as a Transport Officer. Without any particularisation of the tasks which Mr Salama was said to be performing, or had been denied the opportunity to perform, during working hours, I am not satisfied that Mr Salama has established a breach of cl 38.1(c).

385    Accordingly, whilst I have accepted that Mr Salama had a workplace right to initiate the DSP procedure as he did on 18 May 2017 in the context of the union rights dispute (as outlined in section 5.3.1.2), to the extent that he contends that the conduct of Sydney Trains amounted to a breach of cl 38, I reject that claim.

8.    DISPOSITION

386    For the reasons set out above, I have concluded that Mr Salama fails in his adverse action claim under ss 340(1) and 346 of the FW Act and also in his claim that Sydney Trains acted in contravention of the Enterprise Agreement contrary to s 50 of the FW Act. As a consequence, the claim against Mr Walsh as an accessory to any breach by Sydney Trains must also fail. In the circumstances, it has been unnecessary for me to decide whether the Court has jurisdiction with respect to the claim against Mr Walsh.

387    The consequence is that Mr Salama’s claim must be dismissed.

Associate:

Dated:    24 March 2021