Aisha Brelin v Sydney Trains [2021] FWC 1314

1 Fair Work Act 2009 s.394—Unfair dismissal Aisha Brelin v Sydney Trains (U2020/14707) DEPUTY PRESIDENT BULL SYDNEY, 13 MAY 2021 Application for an unfair dismissal remedy - Motor vehicle accident whether reckless or human error - Whether employee provided false or misleading information - Reinstatement and lost remuneration considered. [1] Mr Aisha Brelin (the applicant) has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that he was unfairly dismissed by Sydney Trains, and seeks reinstatement as a remedy.1 [2] Mr Brelin states that he was dismissed on 23 October 2020, when he received a letter (dated 22 October 2020) from Transport for NSW, stating that Sydney Trains’ earlier disciplinary decision to terminate his employment was affirmed. [3] The correspondence from Transport for NSW was a result of Mr Brelin requesting that a Disciplinary Penalty Review be undertaken following advice he received from Sydney Trains on 8 September 2020 that Sydney Trains was of the view that his employment should be terminated due to engaging in conduct that breached particular sections of the Sydney Trains Our Code of Conduct (Code of Conduct) and in particular: Section 3 – Staff responsibilities and Section 9 – Workplace health and safety. [4] The correspondence advised that Mr Brelin could, under the Interim Discipline Penalty Process Guidelines, within a 10-day period ‘access a review process on the grounds that a disciplinary decision ought not to have been made because it was unfair, harsh or unreasonable’. Mr Brelin availed himself of the Disciplinary Penalty Review process, but the dismissal decision was not overturned. [5] At the hearing of this matter, Sydney Trains was represented by Counsel, which was not opposed, and permission was granted as per s.596(2)(a) of the Act. Mr Brelin was represented by officers of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU). 1 Form F2 at 2.1 [2021] FWC 1314 DECISION -- 1 of 30 -- [2021] FWC 1314 2 Background [6] On 17 August 2019, Mr Brelin while reversing his work vehicle on a rail access road collided with a power pole. Mr Brelin reported the accident to Sydney Trains management and management representatives attended the site to assess the damage to the vehicle. [7] On 26 August 2019, Mr Brelin participated in a formal interview conducted by a Mr Daniel Gonsalves, a Plant Mechanic and Acting Team Manager at the Clyde Heavy Plant Depot2 as part of a Level 5 Investigation Report. Mr Brelin provided a written statement of his account of the accident. Mr Gonsalves’ Workplace Investigation concluded that the immediate cause of the accident was ‘human error caused by poor visibility and breakdown in communication.’ The investigation outcome was signed off by the Acting Service Manager Heavy Plant & Resurfacing at the Clyde Heavy Plant Depot, Ms Margaret Pearce on 6 September 2019 and the investigation was deemed closed. [8] The Investigation Report made a number of recommendations, including that Mr Brelin attend a driver trainer course, which he undertook. [9] In mid-April 2020, eight months after the accident, Mr Brelin was notified by telephone that an investigation into the vehicle accident was to be conducted by the Workplace Conduct and Investigation Unit (Investigation Unit). [10] On 17 April 2020, Mr Brelin was sent formal advice of the investigation which stated that Sydney Trains had received a complaint and has reason to suspect that he had engaged in conduct in breach of the Code of Conduct and has requested that the Investigation Unit undertake a Disciplinary Investigation. The investigation was to be conducted by an external body on Sydney Trains’ behalf. [11] On 1 May 2020, a 2 Week Status Update letter was sent to Mr Brelin stating that it was intended that the Disciplinary Investigation will be completed as soon as practicable. [12] On 22 May 2020, Sydney Trains sent correspondence to Mr Brelin notifying him of the misconduct allegations made against him which were said to be in breach of the Code of Conduct and requesting that he respond in writing within 14 days. [13] In summary, the misconduct allegations were:  That Mr Brelin failed to take reasonable care of the health and safety of himself and Ms Rachael Waistell, a Sydney Trains apprentice, while working as a plant mechanic in support of track maintenance machines in the rail corridor north of Wollongong Station on 17 August 2019 when he reversed the vehicle he was driving, a Sydney Trains Ford Ranger, in a manner which resulted in the vehicle colliding with a power pole in the rail corridor causing approximately $35,000 worth of damage. The accident caused Ms Waistell (who was in the passenger seat) injury requiring her to have time off work. 2 Witness statement of Ms Pearce of 21 January 2021 at [14] -- 2 of 30 -- [2021] FWC 1314 3  That during the investigation on 17 and 26 August 2019, Mr Brelin provided false and/or misleading information about the circumstances of the accident to his manager Mr Daniel Gonsalves when he stated the vehicle he was reversing was travelling at 10km/h when it collided with the pole, as the vehicle was travelling in excess of 10km/h. [14] On 23 June 2020, Mr Brelin was interviewed as part of the disciplinary investigation, and on 22 July 2020, he was provided with correspondence advising that the allegations had been substantiated and that Sydney Trains had formed the preliminary view that the appropriate disciplinary action was dismissal. [15] Mr Brelin was invited to provide any response within 10 working days, after which a final decision would be made. During this period Mr Brelin was not required to attend work. [16] On 12 August 2020, Mr Brelin provided his written response. [17] On 8 September 2020, Mr Brelin was provided with correspondence from Sydney Trains (dated 24 August) stating that prior to making a final decision it had considered his response to the misconduct allegations and that he had breached the Code of Conduct. [18] The correspondence stated that Sydney Trains had concluded that its preliminary view remained and that the appropriate outcome was dismissal. [19] The correspondence advised that he may request a review of the decision within 10 working days to be sent to the Secretariat, Transport for NSW Disciplinary Panel. [20] Mr Brelin submitted his request to the Secretariat for a review on 21 September 2020, and on 22 October correspondence was forwarded to Mr Brelin which advised that Sydney Trains’ decision to terminate his employment was affirmed by the Transport for NSW Disciplinary Panel. Mr Brelin’s evidence Evidence of Mr Brelin [21] Mr Brelin provided a witness and reply witness statement3 and was subject to cross- examination. Mr Brelin’s evidence was that he commenced with Sydney Trains as an apprentice plant mechanic in 2012 and was the top apprentice in his year. [22] Following completion of his apprenticeship in 2015, he was offered a full-time position as a plant mechanic based at the Clyde depot. Mr Brelin also qualified as an auto- electrician and hydraulics technician by attending night classes at TAFE.4 [23] On 16 August 2019, Mr Brelin started his shift at the Clyde depot and was rostered to work standby in Wollongong the following day, which required him to travel away from home and stay in accommodation nearby. Mr Brelin stated that standby relates to attending 3 Exhibits A1 and A2 4 Witness statement of 22 December 2020 at [6-9]; Exhibit A1 -- 3 of 30 -- [2021] FWC 1314 4 any breakdown or support that might be required to rail vehicles. Mr Brelin stated he was aware that he was scheduled to work with a fellow plant mechanic, Jesse Laughton, and auto- electrician apprentice, Rachael Waistell. [24] On 17 August 2019, he started his shift at 5am and drove down to the Wollongong Station siding. Following the pre-work and worksite protection briefing held with the machine operators, Mr Brelin travelled in a Sydney Trains vehicle with Ms Waistell, and Mr Laughton followed in a separate vehicle to the first worksite. [25] At 8:36am he received a call from Mr Laughton advising that he had moved to another location and as a result Mr Brelin drove up onto the access road through the boundary gate and into the rail corridor. This was done to ensure that they were as close as possible to the machines in case they required any support. [26] Once inside the rail corridor he parked his vehicle behind Mr Laughton’s vehicle, so they were adjacent to the machines being operated. After Ms Waistell, Mr Laughton and himself carried out an inspection of the machines being operated, they had breakfast near the two parked vehicles. [27] As the machines continued to operate on the train track, they were required to follow the machines and provide any support as required. [28] Mr Brelin stated that there was a dead end at the end of the access road with only enough room for one car to perform either a U-turn or a three-point turn. [29] Mr Brelin’s evidence was that with Mr Laughton’s vehicle parked in front of his and with the road ahead ending in a dead end it seemed likely that the turning area would not fit two vehicles as the road is bounded by a track and ditch, making a three-point U-turn impossible. [30] As Mr Brelin was parked behind Mr Laughton, this would have allowed Mr Laughton to turn around however, he would not have been able to fit his vehicle down the access road to perform the same manoeuvre. Mr Laughton proceeded forward to perform the turn and travel towards the boundary gate. [31] Mr Brelin stated he had no choice other than to reverse his vehicle down the access road towards the boundary gate that they had entered earlier. [32] Mr Brelin stated that the vehicle he was driving was affixed with a service box which houses all the work tools required. The service box however impairs rear vision and the only way to assess hazards is by relying on both side mirrors and the reversing camera. The reversing camera is intended to act as a substitute for a rear-view mirror, however, it has a small display, and it is difficult to see hazards from behind the vehicle. [33] Mr Brelin stated that given the size and quality of the picture of the reversing camera, it is only good for a couple of metres behind the car and not particularly good when reversing. On the day, the parking sensor that was fitted in the vehicle was not working and he had attempted to make inquiries have this fixed, however the vehicle had not yet been serviced.5 5 Witness statement of 22 December 2020 at [33-45] -- 4 of 30 -- [2021] FWC 1314 5 [34] Mr Brelin’s evidence was that to head back to the boundary gate he had to reverse approximately 200m towards the entrance to the access road. [35] Mr Brelin stated that he was talking to Ms Waistell who was in the passenger seat whilst he was reversing and was using the side mirrors to ensure there were no hazards heading towards the boundary gate. [36] Just before the accident Mr Brelin stated that he looked to the left side mirror and Ms Waistell’s arm was obscuring the view, he immediately looked to the right mirror and then heard Mr Laughton’s car horn. (In retrospect he now believes that Mr Laughton was trying to warn him of the pole).6 He looked towards Mr Laughton while continuing to reverse and then heard a loud bang and the car came to an immediate stop. He did not brake at any stage as he had not seen the pole.7 While reversing his vehicle Mr Brelin stated that he did not check the speed he was travelling at. [37] Immediately following the collision, he asked Ms Waistell whether she was okay to which she replied she was. They both exited the vehicle and inspected the damage. Mr Brelin stated that he could see that the back left side of the vehicle had been hit and that the aluminium service box affixed to the vehicle had been damaged. He then contacted Mr Greg Hill who was the Acting Team Leader at the time to advise of the accident.8 [38] Sometime later, the Network Superintendent arrived with another employee. Mr Brelin advised the Superintendent that he was not sure of the speed he was travelling at the time of the accident, but it was about 10km/h. Mr Brelin stated that the other employee whom he did not know stated that he was not the first person to hit the pole.9 [39] Mr Daniel Gonsalves also attended the scene of the accident and asked how fast Mr Brelin was travelling, to which he replied he guessed around 10km/h, but he wasn’t looking at the speedo at the time.10 [40] Mr Brelin stated that to the best of his recollection, he never stated with certainty that he was travelling at 10km/h as he could not be sure how fast he was travelling because as he had stated numerous times, he was not looking at the speedo at the time.11 [41] Later that day he received a text message from Ms Waistell stating that she was off on workers compensation for a little while. Ms Waistell’s text message also stated that he shouldn’t feel bad as this shit this happens sometimes.12 6 PN893 7 Witness statement of 1 February 2021 at [5] 8 Witness statement 22 December 2020 at [60] 9 Ibid at [68] 10 Ibid at [71] 11 Witness statement of 1 February 2021 at [22] 12 Attachment AB 2 to 22 December 2020 witness statement. Mr Brelin's witness statement on occasions refers to 2020, where appropriate this is taken to be 2019. -- 5 of 30 -- [2021] FWC 1314 6 [42] Mr Brelin stated that he was rostered to work night shift in the week immediately following the accident. During this week he received a telephone call from Mr Gonsalves who stated to him that Maggie Pearce was saying that his behaviour was reckless. [43] On 26 August 2019, he attended an interview with Mr Gonsalves which he understood was to be a formal meeting to discuss what had happened. He brought with him a written statement that Mr Gonsalves had previously advised that he should prepare. [44] During this meeting, Mr Gonsalves asked whether he had performed a ‘360’ check before reversing to which he replied he had.13 After this interview, Mr Brelin continued to work and was not directed to attend any other meetings or interviews. In early September 2019, Mr Gonzales directed him to attend a defensive driving program which he understood was as a result of the investigation, Mr Brelin completed this course. [45] In mid-April 2020, Mr Brelin stated that he received a telephone call from the Workplace Conduct and Investigation Unit (Investigation Unit) who stated there was going to be an investigation into his conduct regarding the vehicle accident in August 2019. Mr Brelin stated he was surprised that so long after the event and having already given a statement, the matter was being dealt with again as he assumed that the matter had already been dealt with. [46] On 22 May 2020, he received a letter detailing the allegations that had been made against him. [47] On 12 June 2020, Mr Brelin provided a written response. He was then requested to attend a telephone interview with a Mr Kelvin Kenny from Kannelyn Forensic Consultants on 23 June 2020. Mr Brelin understood that Mr Kenny was a contractor that had been engaged by Sydney Trains to investigate the allegations made against him. [48] On 22 July 2020, while at work, he received a telephone call from Ms Maggie Pearce, who advised that she needed to speak to him regarding investigation outcome. Mr Brelin drove to the Clyde depot where Ms Pearce handed him a letter that stated the allegations made against him had been substantiated. The correspondence stated that the preliminary view of Sydney Trains was that he should be dismissed and that he was not required to attend work until a final outcome had been communicated to him. A final decision would be made within 10 working days of receipt of any submissions he may wish to make. [49] Mr Brelin stated that he provided a written response on 12 August 2020, and on 25 August 2020 he received a telephone call from Ms Pearce who stated that she had a letter that she needed to provide to him in person. When meeting with Ms Pearce, who had a bodyguard with her, she handed him a piece of paper that was not in an envelope and stated that he needed to sign some ‘stuff’.14 Mr Brelin stated he handed the paper back saying he was going to call his union delegate. Ms Pearce stated that she had just come to do the right thing by him so they could collect his uniforms and he would not have to go back to the work site.15 [50] On 26 August 2020, he received an invitation to attend a meeting on 31 August 2020, although the meeting was later arranged to take place on 8 September 2020, at which he 13 Witness statement 22 December 2020 at [96] 14 Ibid at [124] 15 Ibid at [126] -- 6 of 30 -- [2021] FWC 1314 7 understood he was to receive the final outcome of the disciplinary investigation. During this meeting he was handed a letter from Ms Pearce and asked to sign it. This correspondence stated that the final outcome was that he was to be dismissed. [51] On 21 September 2020, Mr Brelin submitted a Disciplinary Review Request to Transport for NSW. On 22 October 2020, he received a letter from Transport for NSW confirming the decision to terminate his employment. [52] Mr Brelin, while accepting responsibility for reversing the vehicle into a pole, stated that the collision was an accident and that he had taken all reasonable steps to ensure the health and safety of himself and his passenger. Secondly, to the best of his recollection, he was travelling at approximately 10km’s per hour while reversing and at no point during the investigation process did he provide false and/or misleading information regarding the accident. [53] Mr Brelin was taken to the employer’s Our Code of Conduct and did not dispute what was required to be adhered to in respect to complying with policies and procedures and performing his duties safely.16 [54] Mr Brelin stated in cross-examination that he had applied under the Sydney Trains’ policy to be able to take his work vehicle home and in doing so was required to comply with the motor vehicle fleet procedure. Mr Brelin was aware of the ‘360’ vehicle check to be undertaken prior to and after using a motor vehicle17 and stated that he had conducted such a check prior to reversing his vehicle down the access road.18 [55] While Mr Laughton was able to perform a three-point turn, Mr Brelin stated that he was unable to drive further south and did not do so as it was unsafe to perform a three-point turn in his location. Mr Brelin stated that he looked to the left, where there was a ditch, he then looked to the right and there was a railway track. He looked behind his vehicle and it was a flat straight road.19 On this basis he decided the safest option was to reverse down the access road which he did so for approximately 200 metres until he collided with the pole. [56] Mr Brelin stated that it was possible to have performed a U-turn to have the vehicle facing in the driving direction when the road opened up.20 Mr Brelin stated that when commencing to reverse, he started slowly and when the access road opened up, he increased his speed. It was possible that he exceeded 15 km/h but not 20km/h.21 [57] Mr Brelin disputed that he had laughed at any stage while reversing and that Mr Laughton only used his horn on one occasion. In discussing the accident with Mr Laughton, Mr Brelin denied any discussion about hiding the reasons for the accident. 16 Section 3 Staff Responsibilities of Our Code of Conduct 17 PN400 18 PN495 19 PN607 20 PN683, 879. Witness statement of 1 February 2021 at [35] 21 PN841-843 -- 7 of 30 -- [2021] FWC 1314 8 [58] At the relevant time he did not think to use a spotter as at least 98% of the time he drives alone, and it would not be practical for someone to have to walk approximately 200 meters.22 [59] In stating that he could have done things better in hindsight, Mr Brelin stated that he did not mention this previously in the investigation as he was not asked this question.23 Mr Brelin’s evidence was that he was driving carefully based on the circumstances.24 He was never asked whether he was remorseful and if he had been, he would have stated he was sorry about the accident, although following the incident he told his Acting Team Leader at the time, Mr Greg Hill, that he felt bad about causing an accident.25 Evidence of Mr Jesse Laughton [60] Mr Laughton is a plant mechanic who works in the heavy plant section at Sydney Trains based at the depot in Clyde. On 16 August 2019, Mr Brelin and himself were staying overnight in Figtree NSW, near Wollongong, as they had a job starting the next morning at 5am on a standby shift for the Team 1 track machines. An apprentice, Ms Rachael Waistell, was also scheduled to perform this work. [61] The work involved following the Track 1 resurfacing machines along the tracks while they work and fixing them when needed. Resurfacing machines pick up the rail track and compress the ballast underneath it. This work involved going in and out of the rail corridor using access roads to follow the machines and access the rail corridor when necessary. Access roads typically run the length of the rail corridor and are the only way to access the tracks.26 [62] On the morning of 17 August 2019, Mr Brelin and Mr Laughton signed off on the brakes of the resurfacing machines which allows the machines to travel. They then set about their work for the day.27 After lunch it was time to continue to follow the machines. Mr Laughton was in a truck and Mr Brelin, a Ford Ranger. As the access road ended shortly after the location, they had stopped at to have lunch, Mr Laughton states that Mr Brelin and himself needed to turn around to exit the same access gate that they had entered. [63] Mr Laughton drove further down the corridor until he reached a creek crossing where he could turn his vehicle around and drive up the access road towards the access gate. At the same time Mr Brelin was reversing his vehicle. In Mr Laughton view, as Ford Rangers have a very poor turning circle, he assumed this was the reason Mr Brelin’s was reversing towards the access gate. [64] As he was driving up the access road, he saw that Mr Brelin was reversing towards a pole approximately 200 meters away. At this point he sped up and honked his horn to try and warn him, he also put his hand up to indicate that he should stop. This did not prove successful and Mr Brelin’s vehicle collided with the pole. Mr Laughton estimated that he was 22 Witness statement of 1 February 2021 at [26-27] 23 PN764-768 24 Witness statement of 1 February 2021 at [41] 25 Witness statement of 1 February 2021 at [74] 26 Witness statement of 24 December 2020, Exhibit A6 at [9-12] 27 Ibid at [16] -- 8 of 30 -- [2021] FWC 1314 9 travelling at approximately 25-30 kilometres per hour and was catching up with Mr Brelin’s vehicle although he was around 150 meters away when the collision occurred. [65] Mr Laughton asked whether Mr Brelin and Ms Waistell were ok and they both replied that they were fine. [66] In cross-examination Mr Laughton denied that he was involved in any ‘game’ with Mr Brelin.28 [67] The following day both Mr Brelin and himself resumed work as normal. The following year, in May 2020, he was interviewed by an investigator over the accident.29 Evidence of Mr Keith Lang [68] Mr Lang is a Heavy Plant Technician with Sydney Trains and acted as a support person for Mr Brelin at his meeting with Mr Gonsalves on 26 August 2019. At the conclusion of this meeting, Mr Lang’s evidence was that the meeting concluded with Mr Gonsalves stating that the investigation had concluded, and the outcome was that no further action was required. A week or two later a document addressed to all employees headed ‘Safe Driving Practices’ was raised at the Heavy Plant toolbox meeting and placed on the notice board. [69] On or around 17 April 2020, Mr Brelin approached Mr Lang and stated that he had received correspondence that he was again being investigated over the incident of 17 August 2019. Around May 2020, Mr Jesse Laughton told him that he had been telephoned and advised he was to be questioned by an investigator and asked Mr Lang if he would be his support person to which he agreed. [70] On 8 May 2020, Mr Lang received a call from a person who identified as ‘Kelvin’ (understood to be Kelvin Kenny) who said he was the investigator and understood that Mr Lang was to be the support person for Mr Laughton. Mr Lang stated that Kelvin suggested he speak to Mr Laughton before the meeting and that he had expert reports which suggest that the vehicle was travelling in excess of that claimed by Mr Brelin at a speed of around 30km per hour. [71] At the conclusion of the telephone call Mr Lang sent a text message to Mr White, the AMWU organiser, stating: “Is it normal or even acceptable for an investigator to ring a support person and discuss the investigation before meeting with and questioning the witness?”30 [72] On 12 May 2020, he sat with Mr Laughton while on a telephone call with Mr Kenny for the purpose of the witness interview. [73] Around 23 July 2020, Mr Lang stated that Mr Brelin asked if he could attend a meeting as his support person with Ms Pearce. At the meeting Ms Pearce handed Mr Brelin a letter which stated that he was to be immediately stood down pending dismissal. 28 PN1527 29 Witness statement of 24 December 2020; Exhibit A6 at [32-37] 30 Attachment KL4 to Mr Lang’s witness statement of 21 December 2020 -- 9 of 30 -- [2021] FWC 1314 10 [74] Mr Lang’s evidence was that vehicles often get damaged in the rail corridor, which has included vehicles being written off, vehicles hitting objects including corridor fencing, doors taken off boxes and vehicles rear ending other vehicles, but no employee has ever been dismissed for these incidents.31 Other evidence [75] Mr Daniel White, an Automotive Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) organiser provided a witness statement which addressed primarily his role as a support person for Mr Brelin and his attendance at meetings with the employer concerning the allegations against Mr Brelin. Mr White was not cross-examined on his evidence. [76] Mr Bradley Woolerton, a fitter for Sydney Trains at the Clyde Heavy Plant depot also provided a witness statement32 but was not cross-examined. Mr Woolerton’s evidence did not directly relate to the vehicle collision. [77] Lastly, Mr David Smith, the Assistant National Secretary of the AMWU, provided a witness statement33 which contained his observations concerning the assessment of the damage to the vehicle Mr Brelin was driving. Mr Smith was not cross-examined but the entirety of his witness statement was objected to by Sydney Trains.34 [78] In claiming that the dismissal was unfair, unjust and unreasonable, it was put on Mr Brelin’s behalf that there was no valid reason for the dismissal and that Sydney Trains could not have been satisfied that the allegations had been substantiated. The dismissal was said to be harsh because of the consequences for Mr Brelin and because of inconsistent treatment between Mr Brelin and other Sydney Trains’ employees who have had motor vehicle accidents. Sydney Trains’ evidence Mr Daniel Gonsalves [79] Mr Daniel Gonsalves is a plant mechanic at the Clyde heavy plant depot. As a team leader he allocates work to plant mechanics and organises for the machines to be serviced as required. Mr Gonsalves is also responsible for managing rosters, taking calls about sick leave, reallocating work as needed and investigating incidents that are subject to a Level 5 investigation. [80] On the day of the accident, 17 August 2019, after arriving on site he spoke to Mr Brelin and Mr Laughton about what had happened, and they indicated the direction in which they had been driving. Mr Gonsalves did not walk down the trail to see what it was like because he wanted to deal with the accident and get out as soon as possible. Although he did 31 Witness statement of 23 December 2020 at [23, 71] 32 Exhibit A7 33 Exhibit A8 34 PN1646 -- 10 of 30 -- [2021] FWC 1314 11 notice that the trail went up and down a bit. He noticed that the power pole Mr Brelin had hit was in the trail of the rail corridor where cars drive, and it was not off to the side.35 [81] He called his manager at the time, Ms Pearce, to tell her of the accident and Ms Pearce asked how fast Mr Brelin was travelling. He advised Ms Pearce that Mr Brelin had stated he was travelling 10km/h. About a week after the accident, he had a conversation on the telephone with Ms Pearce who described Mr Brelin’s behaviour as reckless. Mr Gonsalves replied that as they were not present at the time of the accident, they would not know whether it was reckless.36 In response to a question from Ms Pearce he stated he believed the damage was approximately $20,000-$30,000. [82] Later in the week Mr Brelin stated to him that he was stressed about the accident and inquired how much trouble he was in. Mr Gonsalves told him that Ms Pearce was saying that his behaviour was reckless, but that he told her she can’t know because she wasn’t there. [83] Mr Gonsalves was told by a number of Team Leaders and Managers at the Clyde depot that he had to complete a Level 5 Investigation Report about the incident. He was also told by Ms Pearce that he would need to complete both the Level 5 and the Just Culture Framework. He requested that Mr Brelin complete a written statement about the incident. On 26 August 2019, he held a meeting with Mr Brelin and Mr Lang as Mr Brelin’s support person, during which Mr Brelin handed him his written report on the incident. During the meeting Mr Brelin stated he was travelling at 10km/h. [84] Mr Gonsalves stated that he asked Mr Brelin whether he had completed a 360 and Mr Brelin stated that he had. The 360 rule is that every employee must walk around the vehicle before they start driving to ensure it is safe.37 [85] After the meeting, Mr Gonsalves spoke to Ms Pearce and told her he thought Mr Brelin was travelling at over 20km/h and not 10km/h. Ms Pearce responded that there wasn’t much they could do as they don’t have the tools to investigate it further and told Mr Gonsalves that he was not required to do anything else,38 although Mr Gonsalves did complete a Safety Focus document to notify every one of the accident. [86] Mr Gonsalves stated that he noticed that the toolbox on the back of a Ford Ranger is made of aluminium which is weaker than steel and bends and breaks easier than steel.39 [87] The following year on 12 March 2020, Mr Gonsalves spoke with the Professional Conduct Unit (PCU) about the incident and told them he was the Acting Manager at the time. The file note of the meeting indicates that he told the PCU that judging from the damage on the vehicle it had been travelling at 30-40km/h and that the toolbox is ‘pretty strong’.40 [88] On 20 April 2020, he spoke to Mr Kenny who was conducting an investigation from which a statement was prepared. In the statement Mr Gonsalves states he did not include in 35 Witness statement of 21 January 2021; Exhibit R3 at [19] 36 Ibid at [26] 37 Ibid at [40-41] 38 Ibid at [42] 39 Ibid at [46] 40 Attachment 10 to Investigation Report at page 131 -- 11 of 30 -- [2021] FWC 1314 12 his initial report his opinion as to the speed of the vehicle based on what Ms Pearce had said to him.41 He estimated that the vehicle must have been travelling at over 20 km/h and could have been going as fast as 30 km/h.42 Mr Gonsalves’ evidence was that he thought the difference in the estimate of speed between speaking to the PCU and the investigator was because the investigator was more precise in what he was asking.43 [89] Mr Gonsalves accepted that while taking reasonable care it was possible to still have an accident in the rail corridor44 and that at the time he concluded that the driving of Mr Brelin was not reckless, but human error.45 Mr Gonsalves’ evidence was that there is no speed limit in the rail corridor, and that the requirement is to drive safely.46 [90] Mr Gonsalves also accepted that while he was of the initial view that Mr Brelin was travelling over 20km/h he did not think this was reckless.47 He did not walk down the trail to make an assessment as to whether a three-point turn was possible.48 Evidence of Margaret Pearce [91] Ms Pearce is the Acting Service Manager, Heavy Plant and Resurfacing at the Clyde Heavy Plant Depot. Ms Pearce stated that Mr Brelin had authority from Sydney Trains to home garage his work vehicle. In doing so he was required to and did sign a declaration that he would drive safely and in a manner that minimises risk to others and himself and damage to vehicles and property.49 [92] On 17 August 2019, Mr Gonsalves telephoned her to advise of an accident involving Mr Brelin and Ms Waistell. Mr Gonsalves advised her that Mr Brelin had said he was travelling at 10 km/h which the passenger Ms Waistell agreed with, although Mr Gonsalves thought they may have been travelling faster. [93] Ms Pearce stated that the Team Manager of the employee, in this case Mr Gonsalves, is automatically allocated the task of preparing a Level 5 Investigation Report after such an incident. The Investigation Report looks for the root causes of the accident and in most cases includes recommendations for actions to minimise the same accident re-occurring. [94] Ms Pearce’s evidence was that irrespective of the speed of a vehicle where two or more people are in a reversing vehicle that hits a pole, the conduct is reckless.50 Ms Peace advised that she had no technical expertise to cast doubt on what Mr Brelin, Mr Laughton and Ms Waistell had said was the speed of the vehicle.51 41 Attachment 4 to Investigation report at [26] 42 Attachment 4 to Investigation Report at [10] 43 Witness statement of 21 January at [16] 44 PN1943 45 PN2020 46 PN2028-29 47 PN2031-33 48 PN2053 49 Witness statement of 21 January 2021 at [11-13] 50 Ibid at [23] 51 Ibid at [27] -- 12 of 30 -- [2021] FWC 1314 13 [95] Ms Pearce approved the Level 5 Investigation Report prepared by Mr Gonsalves and based on Mr Gonsalves advising that the employees involved stated the vehicle was travelling at 10/15 km/h she assumed this was what Mr Brelin meant by a safe speed.52 [96] On 22 November 2019, Ms Pearce stated that she had a conversation with Ms Waistell who said that Mr Laughton had been egging on Mr Brelin when he hit the pole and that she didn’t raise this previously as she didn’t want to be known as a snitch.53 In around February 2020, Ms Pearce was contacted by Mr Munro, the Acting Executive Director, regarding the accident and on 14 April 2020, was contacted by Ms Amanda Kotevski, the Investigations Services Coordinator, Workplace Conduct and Investigation Unit. [97] On 22 July 2020, Ms Pearce met with Mr Brelin and Mr Lang to provide Mr Brelin with a letter confirming that an investigation into the events of 17 August 2019 had been completed and that the preliminary outcome was dismissal.54 [98] On 8 September 2020, she again met with Mr Brelin to provide him with a letter advising of the final outcome of the disciplinary investigation which was dismissal. When advised by Mr Brelin’s support person Mr Daniel White that they were of the understanding that the matter had previously been dealt with, Ms Pearce replied that new information had come to hand.55 Evidence of Mr Munro [99] Mr Munro is the Acting Executive Deputy Director at Sydney Trains. Mr Munro stated that there were different levels of investigations at Sydney Trains depending on the perceived seriousness of the accident and the outcome. A Level 5 now known as a Workplace Investigation is the lowest level of investigation which can be undertaken which the Line Manager of the employee involved completes and manages with the approval of the two up manager. If there was anything arising from the Level 5 Investigation Report that required further investigation it would be expected that the Line Manager completing the report would recommend further investigation.56 [100] Mr Munro stated that he was briefly told about the vehicle accident of Mr Brelin around 6 December 2019 when he received a handover from his predecessor. In or around February 2020, Mr Munro met with Cara Palmer - People and Culture Manager for the Division and the PCU Team Leader. At this meeting he was told by Ms Palmer that there was a suggestion that Mr Brelin and another employee were racing at the time of the accident. [101] On 21 July 2020, a preliminary Disciplinary Review Panel (DRP) meeting was held. In advance of this meeting, Mr Munro obtained a copy of the Investigation Report prepared by the consultants without any of the attachments and a Sydney Trains Summary of Disciplinary Case. Mr Munro also stated that he was shown a copy of the Focused Loss Management Assessors Report Motor Repair Report and recalled noting the way in which the 52 Stated in the Investigation Report ‘at speed that felt safe’; Witness statement of 21 January 2021 at [29] 53 Witness statement of 21 January 2021 at [38] 54 Ibid at [47] 55 Ibid at [56] 56 Witness statement of 21 January 2021 at [12] -- 13 of 30 -- [2021] FWC 1314 14 toolbox had been pushed right up to the frame near the cab and the back windscreen being shattered.57 [102] Mr Munro advised that he was the decision maker in the Disciplinary Review Panel and that the key factors leading to the preliminary decision of dismissal were that Mr Brelin had been reckless, engaging in risky behaviour and knowingly drove in a way that could hurt someone and that he had completely denied what had happened. [103] Mr Munro’s conclusion that Mr Brelin’s conduct was reckless included the following:  driving in the rail corridor has numerous hazards as an environment and you cannot always drive on one side of the corridor in or in a straight line as there are frequently obstacles, holes and pits and you are around live rail tracks and moving trains  reversing as opposed to driving forward  the vehicle has a toolbox which prevents the use of the rear vision mirror  Mr Brelin appear to be reversing close to 40km/h and  Mr Brelin had a passengers (sic) that could have been injured who should have been helping him reverse safely58 [104] Mr Munro’s evidence was that he felt the decision to terminate was cut and dry as it was a serious incident and no one at the DRP disagreed. [105] Following the 21 July 2020 meeting, a letter was drafted on his behalf advising Mr Brelin of the outcome and the letter was sent to Mr Brelin on 22 July 2020.59 [106] Prior to the final DRP meeting held on 20 August 2020,60 Mr Brelin’s response was reviewed and it was Mr Munro’s opinion that Mr Brelin wasn’t taking responsibility for his actions, there was no remorse and his comments about having a good history with safety and being a Health and Safety Representative made Mr Munro conclude that he should have known better. A final termination letter was then drafted. [107] Mr Munro stated that even if Mr Brelin was reversing at 10km/h, he would still hold the same concerns about the risk and the reckless driving. Mr Munro stated that had Mr Brelin stated he was going faster than he should have been and was remorseful the outcome may have been different.61 [108] Mr Munro accepted that while the initial Level 5, Investigation had been closed without any recommendation for disciplinary action to be taken against Mr Brelin there was a further investigation as a result of information that came from Ms Waistell.62 Mr Munro in cross-examination acknowledged that the allegations put to Mr Brelin to answer did not 57 Ibid at [22] 58 Ibid at [25] There was only one passenger 59 Ibid at [27] Although Ms Pearce’s evidence was that she handed Mr Brelin the letter to him on 22 July 2020 60 PN2435 61 Witness statement of 21 January 2021 at [35] 62 PN2596 -- 14 of 30 -- [2021] FWC 1314 15 include details of any game he was playing with Mr Laughton while reversing,63 and that such an allegation was never put to Mr Laughton.64 [109] Mr Munro referred to a ‘Reversing Safely’ video which had been distributed to the Major Works division which was shown during the proceedings.65 Mr Munro accepted in cross-examination that reverse parking in a car park as shown on the video was different to reversing in a rail corridor and that he had never driven in the rail corridor involved.66 [110] Mr Munro also accepted that the allegations put to Mr Brelin in Sydney Trains’ correspondence of 22 May 2020 did not refer to the alleged speed Mr Brelin was travelling at the time of the accident other than it was in excess of 10km/h.67 [111] With regard to the correspondence to Mr Brelin of 22 July 2020 sent by Mr Munro advising of the substantiated allegations resulting in Sydney Trains preliminary view that the appropriate outcome was dismissal, Mr Munro accepted in cross-examination that the written allegations make no reference to travelling at 35-40km/h, Mr Brelin expressing a lack of remorse, acting in reckless manner, failing to perform a ‘360’, failing to perform a three-point turn and/or failure to use Ms Waistell as a spotter.68 Conclusion [112] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of the Act granting a remedy for unfair dismissal. Section 385 of the Act provides as follows: “S.385. A person has been unfairly dismissed if the FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and (d) the dismissal was not a case of genuine redundancy.” [113] The Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy: “S.396 Initial matters to be considered before merits The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: 63 PN2628 64 PN2648-50 65 Witness statement of 21 January 2021 at [13] 66 PN2800-2803 67 PN2943 68 PN3124-3136 -- 15 of 30 -- [2021] FWC 1314 16 (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) whether the dismissal was a case of genuine redundancy.” [114] The application for unfair dismissal was made within the requisite timeframe and there is no suggestion that Mr Brelin is not a person protected from unfair dismissal. Sydney Trains is not an employer covered by the Small Business Code. [115] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable: “Section 387 Criteria for considering harshness “(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and (e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (h) any other matters that the FWC considers relevant.” [111] Each of these matters is now considered. (a) Whether there was a valid reason related to capacity or conduct for the dismissal -- 16 of 30 -- [2021] FWC 1314 17 [116] The Federal Industrial Relations Court69 considered the concept of a valid reason for termination in Selvachandran v Peteron Plastics Pty Ltd70 (Selvachandran), a decision of Northrop J. Despite being a case under previous legislation, it is applied in this Commission under the current legislation. In Selvachandran, his Honour found that: “In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.” [117] Comments made by Wilcox CJ in Kenefick v Australian Submarine Corporation Pty Ltd71 are also relevant in considering the meaning and approach to ‘valid reason’: “I think it follows that the reason must be genuine, that there must be a causal relationship between the reason and the termination and that the termination must be a logical response to the employee’s capacity or conduct or the employer’s operational requirements.” (My underline) [118] In Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224 at 229 a Full Bench of the Industrial Commission of South Australia stated: “ … Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just. Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the 69 As it then existed 70 (1995) 62 IR 371 71 [1995] IRCA 405 (11 August 1995) at 116 -- 17 of 30 -- [2021] FWC 1314 18 circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of those matters will probably render the dismissal harsh, unjust or unreasonable.” [119] In this matter, Sydney Train submits that a valid reason for the dismissal of Mr Brelin existed. He was required to comply with Sydney Trains’ policies and procedures which included obligations relating to driving a Sydney Trains’ vehicle in a safe manner. [120] Following the incident on 17 August 2019, Mr Gonsalves completed a Workplace Investigation Report of the accident, the conclusion on the cause of the accident is set out in the following manner: Immediate Cause: Classify the Immediate Cause: poor visibility and breakdown in communication Human error [121] The Report included a number of recommendations which were:  Book in mechanic for driver training practical training  Draft safety alert then brief out to all staff  Review effectiveness of all reversing cameras and reversing sensors in all vehicles  Conduct a trial on ‘extension’ mirrors on Rangers  Provide findings of mirror trial to Peter Khoury to review and action  Staff member to attend Driver training course  Provide findings of cameras to Peter Khoury to review and action [122] The Workplace Investigation Report was signed off by Ms Pearce on 6 September 2019 and the status of the matter was recorded as closed. Mr Brelin subsequently attended a driver trainer course as recommended in the Report. [123] Other than the Report concluding the cause of the accident was due to poor visibility and breakdown in communication, which was classified as human error, there is no suggestion that Mr Brelin was otherwise at fault. There was no suggestion of any disciplinary process to be undertaken. It was therefore logical for Mr Brelin to conclude that the review of the accident had concluded, which for all intents and purposes it had. -- 18 of 30 -- [2021] FWC 1314 19 [124] However, on 22 November 2019, Ms Pearce had a meeting with Ms Waistell, where Ms Waistell is alleged to have said that Mr Laughton had been egging Mr Brelin on when he hit the power pole and she didn’t feel comfortable raising this issue earlier.72 This conversation led Sydney Trains to commence a disciplinary investigation in accordance with Sydney Trains disciplinary procedure.73 [125] In this instance, where new information has come to the attention of Sydney Trains, it is clearly open and appropriate for Sydney Trains to conduct further investigation based on the newly acquired knowledge, not previously available. Whether, as Mr Brelin contends, this subjected him to a second investigation is not to the point. Sydney Trains had been provided with information after completion of the initial Workplace Investigation that required it to act upon. It is not as submitted on Mr Brelin’s behalf, a case of double jeopardy. [126] The difficulty, however, is that Sydney Trains while initiating a Disciplinary Investigation based on the comments of Mr Waistell, do not rely on the truth of her comments to justify Mr Brelin’s dismissal. Ms Waistell was not called to give evidence by Sydney Trains74 and her comments were not relied upon by Sydney Trains.75 The dismissal of Mr Brelin was the result of a decision made by Mr Munro on the conclusions he reached. These conclusions are set out in Mr Munro’s correspondence to Mr Brelin of 22 July 2020 setting out the substantiated allegations said to have resulted in a breach of Sydney Trains’ Code of Conduct relating to Staff Responsibilities and Workplace Health and Safety. They are stated as follows: “Allegation 1 On 17 August 2019, whilst on duty as a Plant Mechanic, you failed to take reasonable care of the health and safety of yourself and Ms Rachael Waistell, a Sydney Trains Apprentice, when you drove a Sydney Trains motor vehicle into a power pole. The particulars of this allegation are: a) On 17 August 2019, you were working as a Plant Mechanic in support of track maintenance machines in the rail corridor north of Wollongong Station. Also working with you was Mr Jesse Laughton (Sydney Trains Electrician) and Ms Racheal Waistell (Sydney Trains Apprentice); b) The work required you to drive a Sydney Trains Ford Ranger motor vehicle (the Vehicle) in the rail corridor, with Ms Waistell as your passenger; c) About midday, during your shift, you reversed the Vehicle in a manner which resulted in the Vehicle colliding with a power pole in the rail corridor; d) The collision with the pole caused approximately $35,000 worth of damage to the Vehicle; and 72 Witness statement of Ms Pearce of 21 January 2021 at [38] 73 Submissions of 31 March 2021 at [43], PN2754 74 PN1273 75 Email from Sydney Trains 15 February 2021 to Chambers and PN1615, PN1698, PN3065, PN3113. It is noted that the Investigator relied on evidence from Ms Waistell when preparing the Investigation Report see PN3106 -- 19 of 30 -- [2021] FWC 1314 20 e) The collision with the pole also caused an injury to Ms Waistell's back, which required her to have time off work. Allegation 2 On 17 August 2019 and 26 August 2019, you provided false and/or misleading information to your manager, Mr Daniel Gonsalves, about the circumstances of the Vehicle accident, when you said the Vehicle was travelling at ten (10) kilometres per hour when it collided with the pole. The particulars of this allegation are: a) On 17 August 2019, while at the scene of the Vehicle accident in the rail corridor, Mr Daniel Gonsalves. then Acting Plant Manager, asked you what speed that you were reversing the Vehicle when the collision occurred. In response you told Mr Gonsalves that the Vehicle was travelling at ten kilometres per hour; b) On 26 August 2019, when you attended a Just Culture meeting with Mr Gonsalves you again told Mr Gonsalves that the Vehicle was travelling at ten kilometres per hour when the Vehicle collided with the pole; and c) At the time of the collision. you were travelling in excess of ten (10) kilometres per hour.” [127] Allegation (1) refers primarily to the accident itself and is made up of facts which are not in contest other than Mr Brelin does not accept that he failed to take reasonable care of the health and safety of Ms Waistell and himself. The listed circumstances of the accident were known to Sydney Trains at the time of the initial Workplace Investigation undertaken by Mr Gonsalves, other than the cost of repairs said to be approximately $35,000 which at the time was estimated by Mr Gonsalves at $30,000.76 In the week after the accident Mr Gonsalves told Ms Pearce that the damage was estimated at $20,000 or $30,000.77 Ms Pearce’s evidence was that Mr Gonsalves told her that it was going to cost $30,000 to repair the damage.78 It is noted that in contrast to the actual cost of the vehicle repairs, the photographs of the vehicle do not show extensive damage.79 [128] Much of what Sydney Trains relied upon to demonstrate that Mr Brelin failed to take reasonable care when reversing was in the Commission’s view satisfactorily explained by Mr Brelin in his evidence.80 [129] It is Allegation (2) that appears crucial to Sydney Trains decision to terminate Mr Brelin’s employment. This is the finding that Mr Brelin provided false and/or misleading 76 Witness statement of Mr Gonsalves of 21 January 2021 at [42]. Witness statement of Ms Pearce of 21 January 2021 at [25] See also [26] where damage is estimated at $20,000-$30,000. 77 Witness statement of Mr Gonsalves of 21 January 2021 at [26] 78 Witness statement of Ms Pearce of 21 January 2021 at [25] 79 Page 163 of Sydney Trains’ tender bundle 80 Not doing a three-point turn, not asking the passenger to walk beside the vehicle as a spotter etc -- 20 of 30 -- [2021] FWC 1314 21 information to Mr Daniel Gonsalves when stating the vehicle was travelling at 10km per hour when it collided with the pole. [130] It is necessary to verify the source and validity by Sydney Trains of the allegation that Mr Brelin provided false or misleading information to Mr Gonsalves regarding the speed of the vehicle while reversing. [131] Mr Munro, the decision-maker, stated that in advance of his decision he had been provided a copy of the independent investigator’s report of 8 July 2020, but without its attachments.81 The author of the report did not give evidence in this matter. The unredacted report places weight on what Ms Waistell’s states about the speed of the vehicle and gives preference to her speed estimation over that of Mr Brelin and Mr Laughton. However, this conclusion which was seen by Mr Munro and any evidence of Ms Waistell given to the investigator was removed from the Investigation Report by Sydney Trains for the purposes of the hearing.82 [132] Mr Brelin’s evidence was that he did not state with certainty that he was travelling at 10km/h as he was not looking at the speedo at the time.83 Mr Brelin’s statement of 22 August 2019 refers to travelling at approximately 10km/h. As Mr Brelin stated he wasn’t looking at the vehicle’s speedometer at the time of the accident, he, like Mr Munro, could only make an assumption as to the speed of the vehicle. [133] The motor repair assessors’ report of 21 October 2019 states: ‘The vehicle has sustained damage to the REAR, which is consistent with the incident description.’84 (My underline) [134] While the accident description is not included with the assessor’s report there was no evidence provided by Sydney Trains that the motor repair assessor was advised that the speed of the vehicle was any more than that stated in the Fleet Item Claim Report estimated at 10km/h, which would have been a relevant factor in determining the speed of the vehicle at the time of the collision. Mr Munro accepted that it was likely that the assessor was provided with the Fleet Item Claim Report.85 [135] There was very little in the evidence of Mr Munro to support the conclusion in Allegation 2 that Mr Brelin provided false and/or misleading information to Mr Daniel Gonsalves, when stating that the vehicle was travelling at approximately 10km/h when it collided with the pole. No witness (not present on the day of the accident) was able to provide any evidence of the speed of the vehicle that was any more than their own personal belief formed after the event. Of the three persons present only Mr Brelin and Mr Laughton gave evidence which did not support that false and misleading information had been given by Mr 81 Witness statement of 21 January 2021 at [21] 82 See redacted copy of Investigation Report in Sydney Trains amended tender bundle volume 1 83 Witness statement of 1 February 2021 at [22] 84 Page 138 of Sydney Trains Tender Bundle Volume 1 85 PN2830 -- 21 of 30 -- [2021] FWC 1314 22 Brelin. The third person present, the passenger Ms Waistell was not called to give any evidence. [136] The Commission accepts that Mr Brelin may have been conservative in estimating the speed he was travelling at, but this does not lead to a conclusion that he provided false and misleading information to Mr Gonsalves. His opinion as to the speed he was travelling is no more convincing without looking at the speedometer than any other witness called to give evidence. As such, I am not satisfied that Sydney Trains have made out Allegation 2. [137] Despite this finding the Commission is still required to determine whether there was a valid reason for the dismissal related to Mr Brelin’s conduct including its effect on the safety and welfare of other employees. [138] The Commission is satisfied that Mr Brelin was at the time of the accident not demonstrating the appropriate level of driving diligence under the conditions that existed while reversing his vehicle. Mr Brelin was driving in a rail corridor which contained hazards not experienced under normal driving conditions. While Mr Brelin does not concede that he was reversing in a negligent manner in the rail corridor he did accept that while reversing he was having a conversation with his passenger Mr Waistell.86 The fact that Mr Brelin hit a power pole without having seen it and therefore not attempting to brake beforehand indicates a level of inattention to his task of reversing safely that he should have been exercising at the time. [139] The resulting accident caused injury to his passenger and himself and a significant vehicle damage bill was incurred, even accepting that the bulk of the cost ($24,420) was directly attributed to the replacement of the aluminium canopy.87 On this basis, a valid reason based on Mr Brelin’s conduct existed for his dismissal. (b) Whether Mr Brelin was notified of the reason for his dismissal [140] On 17 April 2020 Mr Brelin was advised in writing that events relating to the accident and his conduct on 17 August 2019 were to be referred to the Workplace Conduct and Investigation Unit. [141] On 22 May 2020, he was advised in writing of the resultant allegations made against him and was provided with an opportunity to respond. [142] In correspondence dated 22 July 2020, Mr Brelin was advised of Sydney Trains preliminary view to terminate his employment and provided with the opportunity to respond. [143] On 8 September 2020, Mr Brelin was advised that his response to its preliminary view had been considered and that his conduct (as previously advised) was a significant and serious breach of the Code of Conduct and that the final outcome of the disciplinary process was dismissal. 86 PN630 87 Page 286 of Sydney Trains Tender Bundle Volume 1 -- 22 of 30 -- [2021] FWC 1314 23 [144] The Commission is satisfied that Mr Brelin was notified of the reasons for his dismissal c) Whether Mr Brelin was given an opportunity to respond to any reason related to his conduct [145] Mr Brelin was provided an opportunity to respond to the allegations put to him in the correspondence of 22 May 2020 and he provided a response. Mr Brelin provided a further response to the 22 July 2020 preliminary decision of Sydney Trains to terminate his employment which he did in correspondence dated 12 August 2020. (d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal [146] Mr Brelin was not prevented from having a support person present to assist at any discussions relating to his dismissal. (e) If the dismissal related to unsatisfactory performance whether Mr Brelin had been warned about that unsatisfactory performance before the dismissal [147] This is not a consideration that arose in Mr Brelin’s dismissal. (f)and (g) the degree to which the size of Sydney Trains enterprise would be likely to impact on the procedures followed in effecting the dismissal and the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal [148] Sydney Trains is a large employer with the necessary expertise that would require it to carry out a thorough investigation and follow appropriate procedures. (h) Any other matters that the Commission considers relevant [149] Having found that a valid reason for dismissal existed, the Commission must take into account any other matters considered relevant in determining whether the dismissal is harsh, unjust or unreasonable. [150] It is noted that Mr Brelin commenced with Sydney Trains as an apprentice in 2012 and upon completion of his apprenticeship was offered a full-time position as a plant mechanic. There was no evidence that Mr Brelin had any disciplinary or performance issues prior to his vehicle accident. Mr Munro’s evidence was that Ms Pearce opined that while something had to be done, Mr Brelin’s dismissal was a shame as he was a good worker.88 88 Witness statement of Mr Munro of 21 January 2021 at [19] -- 23 of 30 -- [2021] FWC 1314 24 [151] Despite the August/September 2019 Workplace Investigation regarding Mr Brelin’s accident on 17 August 2019, Mr Brelin’s dismissal resulted from a Disciplinary Investigation into the same incident which Mr Brelin was told by telephone in mid-April 2020 had commenced. The 17 April 2020 correspondence from Sydney Trains referred to a complaint having been made.89 [152] More detail of the reason for the disciplinary investigation commencing was made known on 8 September 2020, when Ms Pearce upon being told by Mr Brelin’s support person Mr Daniel White that the matter had previously been dealt with, replied that new information had come to hand.90 [153] Mr Munro accepted that the ‘Workplace Investigation’ had been concluded in August 2019 and reopened based on new information coming to light from Ms Waistell.91 [154] Mr Munro’s evidence was that if there was anything arising from the Level 5 Workplace Investigation report that required further investigation, it would be expected that the Line Manager completing the report would recommend further investigation.92 In this case no such recommendation was made at the time. It was only after what Ms Waistell purportedly said to Ms Pearce in November 2019, that further action was taken. Mr Munro’s evidence was that Level 5 investigations often turned into investigations at a higher level.93 [155] In this instance, the reason Sydney Trains relied upon to initiate the disciplinary investigation was Mr Waistell’s comments to Ms Pearce on 22 November 2019. However, in this hearing that evidence was not produced, although it was relied upon by the investigator in concluding that the allegation of misleading Sydney Trains was sustained.94 [156] There is simply nothing put before the Commission that was not known to Sydney Trains following the Workplace Investigation completed in September 2019, upon which it took no disciplinary action other than to require Mr Brelin to attend a practical driving training course which he did. The accident was attributed to human error, poor visibility, and a breakdown in communication. [157] At the time of the Workplace Investigation, Mr Gonslaves believed that Mr Brelin was travelling faster than 10km/h and he advised Ms Pearce of this belief.95 The approximate cost of the repair to the vehicle was known.96 The fact the Ms Waistell had to have time off work immediately after the accident was also known to Sydney Trains.97 [158] The outcome of the Workplace Investigation was that the accident was due to human error despite Mr Gonsalves and Ms Pearce being of the view that the vehicle was travelling in 89 Sydney Trains’ correspondence to Mr Brelin of 17 April 2020 90 Witness statement of Ms Pearce of 21 January 2021 at [56] 91 PN2593-2598 92 Witness statement of Mr Munro of 21 January 2021 at [12] 93 Ibid 94 Investigation report prior to redactions 95 Witness statement of Mr Gonsalves of 21 January 2021 at [11] and witness statement of Ms Pearce of 21 January 2021 at [29] 96 Ibid at [25] 97 Ibid at [19] -- 24 of 30 -- [2021] FWC 1314 25 excess of 10km/h. Mr Gonsalves stated that it was possible to have an accident in the rail corridor while taking reasonable care while driving98 and that at the time of the accident he concluded that the driving of Mr Brelin was not reckless, but human error.99 [159] Mr Gonsalves further stated: PN2031 In your evidence previously, you have said that you thought Aisha was travelling at over 20 kilometres per hour, didn't you?---Yes. PN2032 You thought that at the time of the incident as well, didn't you?---Yes. PN2032 But even though you believed this, you still didn't think Aisha was reckless, did you?---No. [160] In giving his evidence Mr Gonsalves stated: PN2020 You told Maggie that you didn't think it was reckless, didn't you?---That's right. PN2021 That's because, at the time, you didn't think it was reckless behaviour?---That's right. PN2022 Isn't that right, Mr Gonsalves?---Yes PN 2023 You didn't think it was at risk behaviour either, did you?---No. PN 2024 You put it down to human error, didn't you?---Yes, I did. (My underline) [161] Mr Gonsalves also stated that there was no speed limit in the rail corridor, the requirement is to drive safely.100 Mr Gonsalves accepted that it was not unusual for vehicles to travel at 20 km/h or more in the rail corridor.101 Although it was not made clear whether this response was referring to vehicles travelling in a forward motion only. [162] While Ms Waistell was the impetus for the disciplinary process to commence sometime later and while she was not called to give any evidence, her thoughts at the time are revealed in a contemporaneous text message to Mr Brelin on the afternoon of the accident which does not suggest that she was of the view Mr Brelin was acting recklessly. The text message is in the following terms: “Sat, 17 Aug, 3:29pm Hey mate Just letting you know 98 PN1943 99 PN2020 100 PN2028-9 101 PN2030 -- 25 of 30 -- [2021] FWC 1314 26 I’m off on workers comp for a little while Have to get some scans and stuff So I won’t see you tomorrow Please don’t feel bad This shit just happen (sic) some times”102 [163] Without relying on the truth of anything Ms Waistell may have told Ms Pearce on 22 November 2019, there was no new evidence produced in the hearing not available at the time of the Workplace Investigation. On this basis it is grossly unfair to Mr Brelin to revisit the event and arrive at a different outcome nearly 12 months later103 when essentially the same facts and circumstances relied upon to justify Mr Brelin’s dismissal existed August 2019 or were reasonably available to Sydney Trains at the time of the Workplace Investigation.104 [164] In Mr Munro’s witness statement, he states that the key factors that led to a preliminary decision of dismissal was that Mr Brelin ‘had been reckless, engaging in risky behaviour, knowingly drove in a way that could hurt someone, and the complete denial of what had happened.’ [165] Mr Munro’s evidence was that had Mr Brelin said he was going faster than he should have been and was remorseful, the outcome many have been different.105 [166] Other than the general allegation that Mr Brelin failed to take reasonable care, the specific conclusions of Mr Munro were never explicitly put to Mr Brelin106 and Mr Munro’s conclusions as to the speed of the vehicle resulted from the investigation report (parts of which are no longer relied upon) and observations of photographs he was provided. [167] Mr Munro acknowledged that he was not a ‘car kind of person’ after using the descriptions ‘cab ‘and ‘chassis’ incorrectly. In respect of how he came to assess the speed of the vehicle, he made the following comments with regard to relying on photographs of the vehicle damage to assess its speed: PN2670 I know that but what did you conclude?---From what I had seen, I believe that the vehicle was travelling at least 30 km an hour. PN2671 All right. In your statement you say 40 km an hour, didn't you?---Yes, at least PN2673 I still believe he was travelling about 40 km an hour, from what I can see. PN2698 What do you think it would look like if it were travelling at 25 km an hour?---I don't know. PN2699 How do you know it looks like that if it's 40?---I don't. 102 Attachment AB2 to witness statement of 22 December 2020 103 Initial Workplace Investigation report on 6 September 2019 and dismissal letter of 8 September 2020 104 The Investigation Report of Mr Kenney draws on evidence given by Ms Waistell which did not form part of Sydney Trains defence. 105 Ibid at [35] 106 See PN3126-3136 -- 26 of 30 -- [2021] FWC 1314 27 PN2703 You agreed with the assessment made by Mr Kenney and he says that his version or his assessment was that it was travelling at 30 so if you say it was close to 40 and Mr Kenney says it was travelling at 30, there appears to be some disagreement. Would you agree with that?---Not disagreement - I've made an assumption. PN2704 You've made an assumption. Is it fair to say that no one really knows how fast the vehicle was travelling at the time the incident occurred?---It would be very fair to say that. PN2713 So there is no way that he could have been sure how fast the car was moving at the time. Do you agree with that?---Sure, yes. PN2714 In fact, during the investigation, the three people that were present during the incident, they all just give estimates as to how fast the speed was occurring - how fast the car was going, would you agree with that?---Yes. PN2731 Okay, sorry - you've already agreed there was no way to know the exact speed at which the car was traveling when the incident occurred on 17 August 2019?---Unless you were looking at the speedometer, yes. PN2737 In your decision do you consider that the outcome may have been different if Mr Brelin was remorseful about what he had done?---In my statement I state that, yes - could have been different, yes. PN2754 I think as you have consistently answered previously this whole second exercise is because of Mr Wassell's complaint?---Yes. (My underline) [168] It is clear from the evidence of Mr Munro that his assessment of the speed of the vehicle at the relevant time was no more than an assumption he made by looking at photographs of the vehicle damage which was not done with any expertise in this field. It is noted that Mr Gonsalves’ evidence was that the toolbox on back of a Ford Ranger is made of aluminium which is weaker than steel and bends and breaks easier than steel.107 [169] Mr Munro’s evidence was that Mr Brelin’s dismissal was fair and appropriate even if he was only travelling at 10 km/h,108 On this basis, as Mr Brelin had stated that he was travelling at approximately 10km/h on 17 August 2019, it was open to Sydney Trains to dismiss Mr Brelin for that reason in August 2019, which it did not, but required him to attend a driver training course. [170] In this matter, the Disciplinary Investigation into Mr Brelin commenced some months after the initial Workplace Investigation undertaken by Mr Gonsalves and signed off and closed by Ms Pearce. It was conducted because of a conversation between Ms Pearce and Ms Waistell on 22 November 2019. As stated, Ms Waistell’s evidence was not before the 107 Witness statement of Mr Gonsalves of 21 January 2021 at [46] 108 Witness statement of 21 January 2021 at [37] -- 27 of 30 -- [2021] FWC 1314 28 Commission and what was essentially relied upon by Sydney Trains on 8 September 2020109 was known and available in September 2019 when the Workplace Investigation was concluded.110 [171] For these reasons I conclude that Mr Brelin’s dismissal was unfair as it was unjust and unreasonable for Mr Brelin to be terminated from his employment when the September 2020 findings were able to be made arising from the Workplace Investigation 12 months earlier. Remedy [172] The primary remedy for a finding of unfair dismissal is reinstatement;111 compensation alone is not to be awarded unless the Commission is satisfied that reinstatement is inappropriate. Sydney Trains submitted that reinstatement is not appropriate on the basis that they have lost trust and confidence in Mr Brelin.112 I am not satisfied that the employment relationship has broken down to the extent that it cannot be reinstated. As the Full Court of the Federal Court said in Perkins v Grace Worldwide (Aust) Pty Ltd:113 “In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another.” [173] Nor am I satisfied that the working relationship between Mr Brelin and any Sydney Trains employee would be so untenable that it should prevent his reinstatement. In this regard I have had regard to the circumstance where the accident was initially held to be human error and Mr Brelin remained working immediately after the accident on 17 August 2019, until he was advised he was not required to attend work on 22 July 2020. [174] While Mr Munro’s evidence was that Mr Brelin had not demonstrated the values and responsibilities expected it did not go as far as stating Mr Brelin could not return to the workforce. [175] The Commission’s order will be that Mr Brelin be reinstated pursuant to s.391 of the Act to the position he was employed in immediately prior to his dismissal within 14 days of the date of the order on the basis that his continuity of employment is maintained.114 As explained by the Full Bench in Kenley v JB Hi Fi115 continuity of employment ensures that the period specified is taken into account in determining any entitlement to service-related benefits. 109 Date of dismissal letter 110 Having regard to the fact that final cost of the vehicle damage was not then known 111 See Explanatory Memorandum at Item 1555 112 Written submissions of 31 March 2021 at [125] 113 See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191 where they refer to alleged loss of trust and confidence needing to be soundly and rationally based. 114 See s.391(2) of the Act 115 Print S7235 at [34] -- 28 of 30 -- [2021] FWC 1314 29 [176] Section 391(3) provides that an order in respect of lost remuneration "may" be made if the Commission "considers it appropriate to do so" thus it is a discretionary exercise to be undertaken by the Commission. [177] A significant period time has elapsed since Mr Brelin’s dismissal from Sydney Trains; however, I do not consider it appropriate to award Mr Brelin an amount for any remuneration lost. [178] Following advice from Sydney Trains on 22 July 2020 that it had formed a preliminary view that he should be dismissed Mr Brelin was not required to attend work until the final outcome was advised to him. Mr Brelin’s unsuccessful appeal outcome was notified to him on 22 October 2020. Mr Brelin also received payment in lieu of notice as per clause 19.2 of the Sydney Trains Enterprise Agreement 2018.116 [179] Mr Brelin’s witness statement attested to obtaining some casual work but his earnings being less than when employed by Sydney Trains.117 In his oral evidence Mr Brelin stated that he is currently working for a rail company on a casual basis and receiving hours similar to that of a permanent employee and he was hoping to be engaged on a full-time basis.118 [180] Although holding that the dismissal was unfair, it is clear that Mr Brelin’s conduct contributed to his termination of employment which provided as held above, a valid reason for the dismissal. As such Mr Brelin must bear some responsibility for his motor vehicle colliding with a power pole which indicates a level of inattentiveness to the task of reversing safely causing injury to his passenger and himself and a considerable vehicle damage bill. [181] In the circumstances, the reinstatement order of Mr Brelin will not be accompanied with any order for Sydney Trains to pay for any loss of earnings since his dismissal. [182] Mr Brelin’s claim that he was unfairly dismissed is upheld. An order for reinstatement with continuity of service will issue and will come into effect 14 days from the date of the order. DEPUTY PRESIDENT 116 See correspondence from Sydney Trains of 8 September 2020 AB13 to Mr Brelin’s witness statement of 22 December 2020 117 Witness statement of 22 December 2020 at [147] 118 PN946-948 -- 29 of 30 -- [2021] FWC 1314 30 Appearances: J. Rabaud and G. Miller AMWU officers for the applicant A. Perigo of Counsel and T. Woods and A. Alexander solicitors for the respondent Hearing details: 2021 February 15 March 10, 15 Final written submissions: Aisha Brelin 24 March 2021 9 April 2012 Sydney Trains 31 March 2021 13 April 2021 Printed by authority of the Commonwealth Government Printer <PR727677> -- 30 of 30 --