Federal Court of Australia

Randall v Sydney Trains [2026] FCA 1246

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 18 April 2026 be dismissed.

2.    There be no order as to costs of the originating application or the respondent’s interlocutory application filed on 4 June 2026.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    The applicant, Joshua Randall, filed an originating application under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on 18 April 2026, naming Sydney Trains as respondent. Mr Randall also filed a concise statement on the same date.

2    Two applications were listed for hearing before me. The first was an application for the “urgent injunctive relief” sought in Mr Randall’s originating application and the second was an application filed by Sydney Trains on 4 June 2026 for summary dismissal of the originating application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth), or alternatively for strike out of the originating application (summary dismissal application).

3    At the hearing, it was common ground that Mr Randall’s complaint to the Australian Human Rights Commission (AHRC) had not yet been terminated in accordance with s 46PH of the AHRC Act. After further discussion with the parties and as there was no scope for s 46PO of the AHRC Act to operate, I made orders striking out the parts of the originating application which purported to be an application under s 46PO of the AHRC Act for final relief, leaving only Mr Randall’s application for interim relief under s 46PP of the AHRC Act. I also directed that the originating application be treated as an application for interim relief under s 46PP of the AHRC Act and reserved on the question of costs of the summary dismissal application. Accordingly, it was unnecessary for me to determine the summary dismissal application.

4    In relation to the balance of his originating application, Mr Randall seeks the following by way of “urgent injunctive relief” under s 46PP(1) of the AHRC Act:

1.    That he be reinstated to his position as an electrical apprentice (substations) at Sydney Trains, on terms no worse than those he enjoyed before 24 December 2024;

2.    That [Sydney Trains] be restrained from terminating his employment, or subjecting him to any other detriment arising from, in relation to or in connection with his complaint at the Australian Human Rights Commission;

3.     That orders (1) and (2) stay in place until seven (7) days after the complaint is terminated by the president of the Commission, or further order of the Court.

4.    Any further orders the Court sees fit to make.

Background

5    On 22 January 2024 Mr Randall was employed by Sydney Trains as an apprentice electrician for a fixed term to 22 January 2028, unless terminated earlier by either party.

6    There is a yearly intake of apprentices by Sydney Trains which is based on business needs and natural attrition rates of qualified tradespeople. An apprentice works to a set roster, which includes on-the-job training and classroom study with a Registered Training Organisation.

7    Sydney Trains engages apprentices for a fixed four-year training term. Their work involves rostered workplace training and classroom study, and permanent employment is not guaranteed on completion of the apprenticeship.

Complaints made and the subsequent investigation

8    On 7 November 2024 Sydney Trains received reports from five Sydney Trains apprentices relating to several incidents of alleged inappropriate conduct by Mr Randall which had occurred at several training locations between April and October 2024. These incidents predominantly involved verbal exchanges between Mr Randall and two apprentices with whom Mr Randall interacted as part of his apprenticeship.

9    On 24 December 2024 Sydney Trains met with Mr Randall and provided him with two letters informing him that it had received information indicating that he may have engaged in conduct that contravened the Transport Code of Conduct, in particular by engaging in inappropriate behaviour toward others in the workplace.

10    Mr Randall was suspended on pay with effect from 24 December 2024 to enable Sydney Trains to make further inquiries and to undertake an investigation into the alleged misconduct. On the same day, Mr Randall was notified that Sydney Trains had referred his matter to the Workplace Conduct Investigations Unit (WCIU). Given the time of year, the WCIU was unable to commence any investigation until after the holiday period.

The investigation report

11    On 24 January 2025 Transport for NSW notified Mr Randall that the WCIU would formally commence a disciplinary investigation into the allegations made against him.

12    On 11 April 2025, following an investigation into the alleged misconduct, an investigation report was issued which found that all eight of the allegations of inappropriate conduct were substantiated.

13    The investigation report concluded that Mr Randall’s substantiated conduct breached the:

(1)    Transport Code of Conduct;

(2)    Sydney Trains Dignity and Respect in the Workplace Procedure; and

(3)    Sydney Trains Discrimination Free Workplace Procedure.

14    On 5 June 2025 Sydney Trains wrote to Mr Randall informing him that, based on the findings in the investigation report, Sydney Trains had formed a preliminary view that the appropriate disciplinary outcome was to terminate his employment. That letter also provided Mr Randall with an opportunity to respond before a final decision was made. Mr Randall responded on 7 July 2025.

15    On 14 July 2025 Fatima Abbas, head of people and culture at Sydney Trains, met with Mr Randall to discuss the preliminary disciplinary outcome and Mr Randall’s response.

16    On 25 September 2025 Sydney Trains again met with Mr Randall and provided him with a letter dated 16 September 2025. After setting out the conduct in which Sydney Trains was satisfied Mr Randall had engaged (collectively referred to as the Allegations), the letter concluded that Mr Randall was to be dismissed (dismissal decision). It provided:

Sydney Trains remains satisfied that you engaged in the conduct outlined in the Allegations and that your substantiated misconduct was in breach of:

1.    Transport Code of Conduct, specifically Bullying, unlawful discrimination & harassment (p.8)

2.    Transport Sexual Harassment Prevention Policy, and

3.    Sydney Trains Discrimination Free Workplace Procedure.

Disciplinary Outcome – Dismissal

Sydney Trains must have trust and confidence in its employees to conduct themselves appropriately and represent its best interests. By engaging in the substantiated misconduct, you failed to act in the best interests of Sydney Trains and you exposed the organisation to significant and unacceptable safety risk. Your misconduct undermined the trust and confidence Sydney Trains must have in you as an employee.

Accordingly, Sydney Trains is satisfied that your misconduct has caused irreparable damage to the employment relationship and is inconsistent with your continued employment and has therefore determined that the only appropriate disciplinary outcome in the circumstances is Dismissal.

…

Request for Review

Under the Interim Discipline Penalty Review Process Guidelines put in place by Transport for NSW, permanent Sydney Trains employees may access a review process on grounds that a disciplinary decision ought not to have been made because it was unfair, harsh or unreasonable.

A request for review is to be made to the Secretariat, Transport for NSW Disciplinary Panel within ten (10) working days of receipt of this letter. The relevant form can be found on the Sydney Trains intranet under MyHR/HR Forms/Discipline. The completed form is to be sent to: penaltyreview@transport.nsw.gov.au.

The notice period for your dismissal commences from the date you receive this letter and includes the ten working day period you have to submit a request for review.

…

(Emphasis in original.)

17    On 8 October 2025 Mr Randall applied to the Transport for NSW Disciplinary Panel for review of the dismissal decision made by Sydney Trains. He provided a letter to the Disciplinary Panel setting out the reasons he believed his dismissal was “unfair and harsh”. That letter addressed each of the Allegations and included:

It is now impossible for me to complete the requirements of my apprenticeship before my contract expires on 22 January 2028. Even if I resumed duty today, I could not complete three years of work in the approximately two years remaining before the contract expires

18    By letter dated 3 November 2025 and provided to Mr Randall on 14 November 2025, the Disciplinary Panel notified him that it had determined that the dismissal decision was not harsh, unfair or unreasonable and affirmed the initial decision by Sydney Trains to dismiss him.

19    Mr Randall’s employment with Sydney Trains was terminated on 14 November 2025 following the completion of the internal investigation and disciplinary process set out above.

Complaint lodged with the AHRC

20    On 11 December 2025 Mr Randall lodged a complaint with the AHRC alleging unlawful discrimination because of his disabilities against Sydney Trains in respect of the process leading up to, and including, the termination of his employment (AHRC Complaint).

21    The AHRC Complaint is ongoing. As at the date of hearing, it had not been terminated or dismissed and the parties are yet to attend a conciliation in respect of it.

22    Ms Galvin, a solicitor in the employ of Sparke Helmore Lawyers, solicitors for Sydney Trains, has given evidence that all Sydney Trains apprentice substation positions have been filled and there are currently no vacancies in Mr Randall’s former role.

23    On 19 February 2026 Mr Randall commenced casual employment at KE Brown Electrical Switchboards. However, as it is a casual position he earns a lower income than he did previously at Sydney Trains.

Legislative framework and legal principles

24    Section 46P of the AHRC Act permits a person to lodge a written complaint with the AHRC alleging unlawful discrimination. Where a complaint is lodged, it must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination and it must set out, as fully as practicable, the details of the alleged acts, omissions or practices: subss 46P(1A) and (1B) of the AHRC Act.

25    If a complaint is made under s 46P of the AHRC Act, it must be referred to the President of the AHRC: s 46PD of the AHRC Act. If a complaint is referred to the President, s 46PF(1) requires the President to:

(1)    consider whether to inquire into the complaint, having regard to the matters referred to in s 46PH of the AHRC Act; and

(2)    if the President is of the opinion that the complaint should be terminated, terminate the complaint without inquiry; and

(3)    unless the President terminates the complaint under (2) above or s 46PH of the AHRC Act, inquire into the complaint and attempt to conciliate the complaint.

26    Section 46PH sets out the bases on which the President may or must terminate a complaint: subss 46PH(1), (1B) and (1C) of the AHRC Act. Where the President terminates a complaint he or she must give a written notice of the termination to the complainant: s 46PH(2) of the AHRC Act.

27    Division 2 of Pt IIB of the AHRC Act is titled “Proceedings in the Federal Court and the Federal Circuit and Family Court of Australia (Division 2)”. Section 46PO identifies circumstances in which a person may apply to this Court or the Federal Circuit and Family Court of Australia (Div 2) in relation to a terminated complaint. The application must be made within 60 days after the date on which a notice under s 46PH(2) was issued (subject to any extensions under s 46PO(2)), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

28    Section 46PP of the AHRC Act provides:

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain:

(a)    the status quo, as it existed immediately before the complaint was lodged; or

(b)    the rights of any complainant, respondent or affected person.

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)    The court concerned may discharge or vary an injunction granted under this section.

(5)    The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

29    In Smith v A High School [2025] FCA 1432 Perram J explained at [3]:

Whilst a complaint is pending before the Commission this Court is empowered to grant interim injunctive relief by s 46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) for two purposes. First, to maintain the status quo as it was before the complaint was lodged; or, secondly, to maintain the rights of an affected person. It is not the case that the usual principles governing interlocutory injunctions apply to s 46PP. Rather, what is germane to the exercise of the discretion it confers are those considerations which bear upon whether either of the stated objectives in s 46PP(1) would be achieved if an interim injunction were granted: Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331 at [17] per Colvin J.

30    The power conferred by s 46PP of the AHRC Act is to grant an injunction for a period of time on the basis that something is to occur in the meantime, namely the conduct of the pending complaint process by the AHRC, after the conclusion of which an injunction cannot be granted. Thus, the purpose of s 46PP is “to protect the complaint-making and resolution process” of the AHRC Act: see Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331 at [15] (Colvin J). In Daccache v BOC Ltd [2020] FCA 485 McKerracher J observed at [30] that:

The mediation role of the Commission is facilitated by the interim preservation of the status quo, ensuring in an appropriate case, as close to a level playing field as possible, while attempts to achieve a conciliated outcome are pursued.

31    In Abraham v Housing Authority [2022] FCA 1145 Jackson J said at [37] in relation to s 46PP that:

However in my view there is no strict requirement on an applicant under s 46PP to satisfy the Court at the time of making that application that if the subject matter of the complaint becomes the subject matter of an application to the Court seeking remedies for unlawful discrimination, there is a probability of success in that latter application. In exercising statutory injunction powers, the court is not constrained by the traditional methods of equity, even though those methods represent a sound basis for undertaking a preliminary assessment which should then be reviewed against the statutory context: see Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd [2003] NSWSC 1145 at [25] (Barrett J). Relevant features of the statutory context here are that an application under s 46PP(1) is only open to be made while a complaint is current: s 46PP(1) and s 46PP(3). Section 46PP(1) expressly provides that the purpose of the injunction is the maintenance of the status quo before the complaint and maintenance of the rights of any complainant, respondent to the complaint or affected person. These aspects of the statutory power indicate that it was granted in order to help preserve the effectiveness of the inquiry and conciliation processes of the Commission in relation to a complaint. It should be exercised principally with that purpose in mind.

32    In Millar Colvin J said at [19]:

As to whether it is relevant to consider whether the complaint is colourable or insufficiently meritorious to justify the exercise of the statutory power under s 46PP, I note that there is an express statutory requirement that it must be reasonably arguable that the alleged acts, commissions or practices the subject of any complaint to the Commission alleging unlawful discrimination are unlawful discrimination: s 46P(1A). Therefore, it appears that a complaint that failed to meet that requirement would not be a complaint in respect of which the power conferred by s 46PP would arise. Otherwise, as noted by Jackson J, part of the Commission's process may involve investigation. Therefore, the question whether it is appropriate to exercise the statutory power should not be approached on the basis that there is a burden of the usual extent on an applicant to provide evidence, particularly evidence that is not readily available to the applicant, in order to demonstrate sufficient strength in the applicant's case to sustain the relief sought. The relief is sought pending the outcome of a process that will include the possibility of investigation and the conduct of a conciliation process that will not require evidence to be adduced in the way that might be required by a curial process. The statutory power is directed towards facilitating that process. If the status quo is not preserved and if the rights of a complainant, respondent or affected person are disregarded in the course of that process then the evident purpose of the statutory process which the Commission is required to conduct would be undermined. In effect, the conferral of the power to grant an interim injunction to achieve one or both of the two stated objects allows the Court, to the extent that is considered just, to curtail resort to self-help outside the process to be conducted by the Commission. It enables a form of standstill to be put in place, to the extent that the Court considers it appropriate to do so. It is a standstill pending a process that may include investigation of the circumstances, including the steps that might reasonably be taken having regard to the nature of the applicant's disability.

33    In Millar, without being exhaustive, Colvin J set out the matters to which the Court might have regard in considering whether to grant interim relief under s 46PP at [18]. They include: the likely duration of the Commission's process, including any likely delays; their causes and the likely consequences for the parties in the meantime; whether there is any collateral and improper purpose motivating the complaint; and the relative burden that will fall on each of the parties if the injunction was granted compared to if it was refused, usually described as the “balance of convenience”.

Mr Randall’s submissions

34    Mr Randall relies on his detailed submissions filed on 9 June 2026.

35    In summary, he submits that he has established a prima facie case of unlawful discrimination contrary to s 15(2) of the Disability Discrimination Act 1992 (Cth) (DD Act). The alleged conduct, which is the subject of the AHRC Complaint, is that his suspension and dismissal occasioned breaches of s 15(2) of the DD Act. Mr Randall contends that, by the interim relief, he is seeking to protect the right to work free from disability discrimination.

36    Mr Randall submits that the investigation into his conduct and subsequent dismissal was unfair because of procedural deficiencies and was discriminatory. Mr Randall contends that his suspension, the investigation and his dismissal were affected by disability discrimination. Among other matters, he relies on Sydney Train’s drug-testing policy, the timing and asserted basis of his suspension, the investigator’s treatment of evidence concerning his ADHD and memory, and alleged procedural deficiencies in the disciplinary process. He submits that those matters support an inference, at least for present purposes, that the conduct complained of occurred because of his disability.

37    Mr Randall submits that the orders he seeks for interim relief would fulfil the purpose of s 46PP of the AHRC Act because it would “halt the infringement that the unfairness and unreasonableness has visited on [his] rights, by restoring [him] to the position [he] would have occupied but for the infringing conduct”.

38    On the question of the relative burden or balance of convenience Mr Randall submits that: the question of safety risk should be given little weight; payment of wages upon reinstatement in exchange for productive labour could not cause Sydney Trains any prejudice; reinstatement would not impose any particular burden on Sydney Trains’ day-to-day operations, he has had minimal contact with the complainants and he will restart in a different year level to them so he would not have any significant contact with them after reinstatement; and there is no evidence that Mr Randall breached any obligations of confidentiality and thus his reinstatement could not be said to risk a breach of confidentiality.

Disposition

39    There was no dispute that an order under s 46PP of the AHRC Act must achieve the statutory purpose to which the power is directed namely to protect the complaint making and resolution process either by: maintaining the status quo, as it existed immediately before the applicant’s complaint was lodged in the AHRC; or maintaining the rights of any complainant, respondent or affected person.

40    There also appeared to be no dispute that Mr Randall’s application was made under s 46PP(1)(b) of the AHRC Act. That is, that he sought to persuade the Court that the interim orders he seeks for reinstatement and prohibition of termination of his employment are for the purpose of protecting the complaint-making and resolution process by maintaining his rights. The rights Mr Randall seeks to protect are those in s 15 of the DD Act which provides, among other things, that it is unlawful for an employer to discriminate against an employee on the grounds of the employee’s disability in the terms of his employment or by dismissing the employee.

41    For completeness I note that Mr Randall would be unable to rely on s 46PP(1)(a) of the AHRC Act given that immediately before he lodged the AHRC Complaint, he was no longer an employee of Sydney Trains. Section 46PP(1)(a) contemplates a situation where a complaint is lodged after an employee is put on notice of a proposed termination of employment but before that termination takes effect: see for example Stonhill v Katherine Town Council [2026] FCA 334 at [2] (Bromwich J). Mr Randall’s status immediately before the AHRC Complaint was lodged was that he was no longer an employee of Sydney Trains. Thus, reinstatement would not achieve the status quo immediately before the complaint was lodged.

42    As set out above Mr Randall seeks to maintain his right to work free from discrimination. However, it is not apparent how the maintenance of his right to work at Sydney Trains will protect the complaint making and resolution processes in the AHRC. In fact, in making his oral submissions, Mr Randall acknowledged that reinstatement would not give him any leverage over Sydney Trains in the conciliation process but would level the playing field.

43    The only right Mr Randall seeks to protect in seeking reinstatement is the right to work free from discrimination. He does not seek to protect a right to a particular position or role within the organisation. While it is clear that he would like to go back to his apprenticeship, he also submitted that Sydney Trains is a big organisation and he could be placed so as not to interact with the employees who made the Allegations and accepts that even if he was reinstated he would not complete his apprenticeship within the time remaining in his fixed term contract which applied prior to termination.

44    More critically, I am not persuaded that protection of Mr Randall’s right to work in the manner claimed will promote the purpose of s 46PP of the AHRC Act. Mr Randall is in as good a position to participate in the complaint and resolution processes of the AHRC now as he would be if reinstated.

45    Both parties made submissions about the strength of Mr Randall’s case. Mr Randall submits that he has a prima facie case while Sydney Trains submits that Mr Randall has a weak prima facie case. In my view there is no requirement to investigate the merit of Mr Randall’s case at this stage. Relief under s 46PP of the AHRC Act is sought pending the outcome of the process before the AHRC which will include the possibility of investigation and the conduct of a conciliation process that will not require evidence to be adduced in the way that might be required by a proceeding before this Court. The statutory power is directed towards facilitating that process and maintaining the status quo or a party’s rights in the interim: see [30] above. Given that and the fact that the AHRC Complaint is extant, I do not propose to engage in an analysis of the available evidence or to form any view about the merit of Mr Randall’s claim. Instead, I will treat that factor, to the extent it is relevant, as neutral.

46    I turn then to consider the relative burdens that will fall on each party should the injunction be granted or not granted.

47    I accept Mr Randall’s submissions that Sydney Trains is a large organisation and that it would be possible for it to find a position for him. While Ms Galvin’s evidence is that all apprentice substation positions had been filled and there was no vacancy in Mr Randall’s former role, I also accept, as an alternative, that Mr Randall could be reinstated and placed on administrative duties, which I understand would mean that he was effectively suspended on pay. But against that is the fact that Mr Randall was terminated because of, among other things, a “breach of trust and confidence”. In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 a Full Court of the then Industrial Court (Wilcox CJ, Marshall and North JJ) recognised at 191 that:

Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (unreported, Industrial Relations Court of Australia, Full Court, No 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

48    Thus, the loss of trust and confidence militates against an order for reinstatement. It places a burden on Sydney Trains. Further, in his letter to the Disciplinary Panel Mr Randall recognises the impracticability of reinstatement in that, even if reinstated to his former position, he would not be able to complete his apprenticeship in the time remaining in his fixed term contract.

49    There is also a question of delay. Mr Randall lodged the AHRC Complaint after his employment was terminated on 14 November 2025. It was open to Mr Randall to lodge the AHRC Complaint before he had exhausted all internal review rights, for example during the period of his suspension. This would have likely brought forward the resolution of the AHRC Complaint and also the opportunity to make this application, including while still an employee of Sydney Trains. Mr Randall did not make this application until April 2026. To that end, while I accept that Mr Randall is self-represented and, as he explained, unfamiliar with Court processes, there was still a delay which weighs against granting the relief.

50    Finally, as set out at [23] above, Mr Randall has found alternative employment. While his current position is casual and not as well remunerated as his former position at Sydney Trains, Mr Randall is able to, and is, working.

51    For those reasons, I am not satisfied that the interim relief sought would maintain the status quo or a presently subsisting right in the sense contemplated by s 46PP(1) or otherwise preserve the effectiveness of the pending AHRC process. That conclusion is sufficient to dispose of Mr Randall’s application. But, added to that, the relative burdens identified above do not favour the grant of the interim relief sought. I therefore decline to grant the relief sought by Mr Randall under s 46PP of the AHRC Act.

Conclusion

52    Mr Randall’s application should be dismissed. There will be no order as to costs of the originating application.

53    Sydney Trains seeks its costs of the summary dismissal application. It submits that s 46PSA of the AHRC Act does not apply because the proceeding was not an application under s 46PO concerning a terminated complaint, with the result that costs remain within the discretion conferred by s 43 of the Federal Court Act. As set out at [3] above, Mr Randall accepted at an early stage of the hearing that the claims for relief under s 46PO could not proceed while the AHRC Complaint was on foot, and I thus made orders striking out those claims. It was unnecessary for me to determine the summary dismissal application. The proceeding was otherwise listed for determination of the application under s 46PP of the AHRC Act.

54    Mr Randall is self-represented and was not legally assisted in his attempts to understand the way in which the AHRC Act operates and its technicalities. While Sydney Trains filed an application for summary dismissal, an affidavit in support and submissions, it was otherwise required to appear given the extant application for interim relief. Further, other than by its submissions, there is no evidence that Sydney Trains put Mr Randall on notice of its intention to seek its costs of the summary dismissal application.

55    In the circumstances I am not satisfied that I would exercise my discretion to make the order sought by Sydney Trains. There will be no order as to costs of the summary dismissal application.

Associate:

Dated:    27 August 2026