1
Fair Work Act 2009
s.604 - Appeal of decisions
Subeg Singh
v
Sydney Trains
(C2019/4210)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT DEAN
COMMISSIONER BOOTH
SYDNEY, 19 FEBRUARY 2020
Appeal against decision [2019] FWC 182 of Deputy President Sams at Sydney on
21 June 2019 in matter number U2016/12864.
Introduction
[1] Subeg Singh has applied, pursuant to s 604 of the Fair Work Act 2009 (FW Act), for
permission to appeal against a decision of Deputy President Sams issued on 21 June 20191
(Decision) in which he dismissed Mr Singh’s application for an unfair dismissal remedy
against his former employer, Sydney Trains. In the amended notice upon which he now
proceeds, Mr Singh contends that the Decision was attended by appealable error in six
respects and that the grant of permission would be in the public interest.
[2] The procedural course of Mr Singh’s unfair dismissal remedy application and his
appeal has been long and somewhat meandering. His original application was filed on 24
October 2016 (in anticipation of his dismissal, which took effect on 30 November 2016).
There was an unsuccessful conciliation before a staff conciliator on 14 December 2016, a
directions hearing before the Deputy President on 23 December 2016, and a further
unsuccessful conciliation before him on 10 January 2017. On 16 February 2017, the Deputy
President was advised by Mr Singh’s then legal representative that his application had been
settled. However on 22 March 2017, the Commission was notified that Mr Singh had changed
his representation, and subsequent correspondence advised that Mr Singh denied that he had
entered into a settlement. There was then a controversy about Mr Singh’s representation,
which was resolved when he again obtained new legal representation. It was then necessary
for the Deputy President to determine the issue of whether Mr Singh’s application had been
settled, and he did so in a decision issued on 7 August 20172 in which he concluded that a
settlement had indeed been reached on 13 February 2017. On that basis the Deputy President
determined to dismiss Mr Singh’s application pursuant to s 587(1)(c) of the FW Act on the
basis that it had no reasonable prospects of success.
1 [2019] FWC 182
2 [2017] FWC 4015
[2020] FWCFB 884 Note: Refer to the Federal Court decision of
22 October 2020 for the result of this matter.
DECISION
E AUSTRALIA FairWork Commission
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1521
[2020] FWCFB 884
2
[3] Mr Singh then appealed this decision and, in a decision issued on 3 October 2017,3 a
Full Bench granted him permission to appeal, upheld his appeal and quashed the Deputy
President’s decision. The matter then returned to the Deputy President for determination of
the merits of Mr Singh’s unfair dismissal remedy application. After some interlocutory
skirmishing, the application was heard before the Deputy President on 9-11 April, 23-25 July
and 20 and 23 August 2018. The Deputy President then reserved his decision and, as earlier
stated, the decision now under appeal was issued on 21 June 2019. Sydney Trains’ success
then led it to lodge an application for costs on 4 July 2019.
[4] Mr Singh lodged his notice of appeal against the decision on 10 July 2019. By this
time he had changed his representation again. His appeal was listed for hearing before a Full
Bench, both as to the application for permission to appeal and the merits of the appeal, on 7
August 2019. However on 16 July 2019 the lawyers for Sydney Trains wrote to the
Commission requesting an adjournment of the hearing on the basis that its counsel and
solicitor who had conducted the matter at first instance were unavailable on the day of the
hearing. They also requested that the matter be listed for hearing on the question of
permission to appeal only. The first part of this request was, by consent, acceded to, and the
matter was eventually re-listed for hearing before the currently-constituted Full Bench on 13
November 2019 (again, both as to the application for permission to appeal and the merits of
the appeal). Directions were issued on 27 September 2019 requiring, among other things, that
Mr Singh file an outline of submissions by 16 October 2019. An outline of submissions was
subsequently filed by Mr Singh in accordance with this direction.
[5] Meanwhile the Deputy President issued his decision as to Sydney Trains’ costs
application on 30 September 2019.4 He determined that Mr Singh should pay Sydney Trains’
party-party costs from 3 November 2017. He reserved making an order giving effect to his
determination in light of Mr Singh’s appeal of his earlier decision, and stated a presumption
that Mr Singh would amend his appeal grounds to encompass the costs decision.
[6] At some time thereafter, Mr Singh changed his legal representation yet again. On 25
October 2019, Hall Payne Lawyers filed a notice that they were commencing to act for Mr
Singh. On 31 October 2019, Mr Singh’s new lawyers stated that they had been instructed to
seek to amend the notice of appeal in respect of both the Decision and the costs decision, and
requested that the existing directions and hearing date be vacated and new directions made
leading to a new hearing date in February 2020. In response to this, the presiding member
conducted a directions hearing in relation to this application on 1 November 2019. It was
submitted at that hearing by counsel for Mr Singh that the notice of appeal and outline of
submissions previously filed on behalf of Mr Singh did not disclose any arguable contention
of appealable error, and it would be necessary for his appeal case to be re-formulated in order
for his interests to be properly represented. It would also be necessary to amend the notice of
appeal to encompass the costs decision of 30 September 2019. Sydney Trains opposed the
adjournment, and proposed instead that the hearing date of 13 November 2019 be retained on
the basis that it would only deal with the issue of whether Mr Singh should be granted
permission to appeal against the Decision, with any appeal against the costs decision to be
reserved until that was determined. Mr Singh did not seek to be heard against this proposal.
Accordingly the hearing was re-listed on that basis, and Mr Singh was directed to file an
3 [2017] FWCFB 4562
4 [2019] FWC 6620
[2020] FWCFB 884
3
amended notice of appeal and a three-page outline of submissions concerning permission to
appeal by 8 November 2019. These directions were complied with, the hearing as to
permission to appeal against the Decision proceeded on 13 November 2019, and we then
reserved our decision.
[7] This Decision determines Mr Singh’s application for permission to appeal against the
Decision.
Factual background
[8] Prior to his dismissal, Mr Singh had been employed by Sydney Trains or its
predecessor statutory entities for 34 years. At the time of his dismissal he held the position of
Team Leader, Track and Structures. His dismissal arose from his involvement in two serious
safety incidents which occurred on 1 August 2015 while his team was undertaking track
measurement work. Following these incidents, Mr Singh was suspended with pay while an
investigation of the incidents was carried out. As a result of the investigation, a “Level 3
Report” was prepared by an external professional safety investigator, Ms Kerry Walker,
which identified a number of systemic deficiencies in relation to the incident and made 15
recommendations for change, and also identified specific instances of failures to follow safety
procedures by Mr Singh as well as others.
[9] On 5 August 2016, Mr Singh was issued with a letter requiring him to “show cause”
why he should not be dismissed on the basis that an allegation of misconduct by him had been
found to be sustained. The allegation and its particulars were as follows (with numbering
added for subsequent reference purposes):
Allegation
On 1 August 2015, between Mortdale and Wolli Creek, in your capacity as Team Leader
and nominated Lookout for a Work Group assigned to complete planned track
measurements on the DN Illawarra Local and the Up Illawarra Local, you failed to follow
safety policies, procedures and guidelines that apply to your work including failing to
carry out your duties safely and reasonably and adequately assess and plan. The
particulars of the allegations are:
Planning and Carrying Out Work
(1) During the course of planning and carrying about the work, you utilized the
‘Lookout Working’ method of protection, in locations that did not have sufficient
Minimum Warning Time (MWT) and or Minimum Sighting Distance (MSD) to
carry out the work.
Incident at Allawah
(2) At or around 10.00am, at approximately 13.800 km on the city end of Allawah
Station, whilst taking track measurements on Up and Down Illawarra Local lines,
you ‘missed’ a warning light and failed to provide adequate warning to the Work
Group to ‘jump out of the way’ of the approaching train.
[2020] FWCFB 884
4
(3) Subsequently, you failed to stop work and implement appropriate control
measures.
(4) You failed to compile or make any form of formal incident report of this incident
at the time these incidents occurred, in accordance with the Network Rules.
Incident at Kogarah
(5) At approximately 11.46.23hrs, while the Work Group were near the country end
of Kogarah station, you failed to take care of the health and safety of yourself and
others in your Work Group by allowing work to continue, despite the lack of
MWT and MSD, leading to Work Group Leader Mr Cane Kolevski being forced
to run across the Down Illawarra Line reaching a safe place at 11.46.26hr,
approximately two seconds before train service 900 passed by the spot where Mr
Kolevski was working, resulting in a near miss.
[10] As earlier stated, Mr Singh was subsequently dismissed effective from 30 November
2016 on the basis of the above allegation. It is to be noted that another member of Mr Singh’s
team was dismissed, two others were demoted, and Mr Andrew Lynn, the Technical
Supervisor in the team, was reprimanded.
The Decision
[11] The Deputy President set out in detail in the Decision the evidence given by the
parties’ respective witnesses, including that of Mr Lynn (called by Sydney Trains) and Mr
Singh. After summarising the submissions, the Deputy President commenced his
consideration of the matter by assessing the credit of Mr Singh as a witness. The Deputy
President found, among other things, that Mr Singh’s answers given in cross-examination
were “...meandering, deflective… argumentative or unresponsive...”;5 that the entirety of his
evidence was “designed and constructed” to support his position that he had done nothing
wrong;6 that his “dogged refusal to accept any responsibility for the events that day [i.e. 1
August 2015] entirely coloured his approach to answering questions which even hinted he
might have had some culpability”;7 and that Mr Singh had to “reconstruct his case in order to
fit the narrative of his insistence of innocence and in light of compelling corroborative
evidence which did not help his case.”8 The Deputy President identified nine categories of
examples from Mr Singh’s evidence which, he said, demonstrated that Mr Singh’s “spin” on
the incidents of 1 August 2015 was “simply not believable”.9 The first example was as
follows:
“Perhaps the most concerning of all, in a classic worst case of ‘cherry picking’, was Mr
Singh’s ‘enthusiastic embrace’ of the Level 3 Report where it was critical of systemic
failures, or of others in the Team, but his complete rejection of any comment or finding
which was critical of him. He justified this by saying Ms Walker was not there and
when he said: ‘she’s not God’. I simply do not understand how it could seriously be
5 [2019] FWC 182 at [316]
6 Ibid at [318]
7 Ibid at [319]
8 Ibid at [321]
9 Ibid at [320]
[2020] FWCFB 884
5
suggested that the Commission would accept this selective, illogical and incoherent
reading of the Level 3 Report.”
[12] The Deputy President then turned to a consideration of the matters required to be taken
into account under s 387 of the FW Act. In relation to whether there was a valid reason for the
dismissal, the Deputy President outlined the applicable principles in a non-controversial way10
and then said:
“[332] It will be evident from the earlier discourse, that I reject Mr Singh’s evidence as
to his minimal role in the incidents on 1 August 2015. His evidence is not credible or
believable. His testimony is riddled with unsubstantiated bravado, inconsistencies and
improbabilities, rather than a full, frank and honest account of the events that day. I
rely particularly on the evidence of the Level 3 Report and the Report of the Regulator.
Moreover, I accept the evidence of Mr Lynn as to the events of that day where it
conflicts with the evidence of Mr Singh. I am satisfied that on 1 August 2015, in Mr
Singh’s capacity as Team Leader and nominated Lookout for a Team assigned to
complete planned track measurements on rail lines at Kogarah and Allawah, Mr Singh
failed to follow safety policies, procedures and guidelines that applied to his work,
including failing to carry out his duties safely and reasonably and adequately assessing
and planning. The specific allegations, as set out in the ‘Show Cause’ letter of 5
August 2016, have been proven, on the balance of probabilities. Accordingly, I am
satisfied there was a valid reason for Mr Singh’s dismissal.”
[13] The Deputy President then considered the other matters specified in s 387. It is only
necessary for present purposes to refer to the Deputy President’s consideration of s 387(b)-(g)
to note that, in relation to paragraphs (f) and (g), the Deputy President criticised the lengthy
period between the incidents on 1 August 2015 and the suspension of Mr Singh which
immediately followed, and his dismissal effective from 30 November 2016.
[14] As to s 387(h), the Deputy President first rejected a submission that Mr Singh had
been the subject of differential treatment, noting that it was premised on Mr Singh having
done nothing wrong on 1 August 2015 and finding that Mr Lynn’s conduct, which was ony
the subject of a reprimand, was of a different kind.11 The Deputy President then took into
account Mr Singh’s long period of exemplary service, his advanced age (76) and his unlikely
prospects of alternative employment, but found that there matters did not outweigh the
seriousness of the incidents on 1 August 2015 because Mr Singh as a long-serving employee
would be expected to have known better.12 The Deputy President then said:
“[346] Even if these ‘harshness’ elements tipped the balance in favour of an unfairness
finding, Mr Singh seeks a remedy nothing short of full reinstatement. Reinstatement,
in my view, would be utterly unthinkable in circumstances where he refuses to accept
any responsibility at all for the incidents of 1 August 2015 and casts the entire blame
on Sydney Trains and his fellow employees. There was not a skerrick of remorse - no
regret for his actions - no apology - no contrition.”
10 Ibid at [324]-[332]
11 Ibid at [342]-[344]
12 Ibid at [345]
[2020] FWCFB 884
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[15] After referring to the Full Bench decision in Hatwell v Esso Australia Pty Ltd,13 the
Deputy President said:
“[348] Given Mr Singh’s own evidence, I could not be at all confident that he would not
act in a similar way in similar circumstances, or take a similar cavalier approach to his
responsibilities as Team Leader. He ignored his responsibilities as a PO4 for which he
had been trained. He disregarded the cardinal safety policies and procedures of Sydney
Trains, notwithstanding he claimed he had a good knowledge and awareness of them.
His belligerent denial of any wrongdoing is so gravely concerning, that I am satisfied
the employer’s trust and confidence in him has been permanently destroyed.”
[16] The Deputy President then concluded that Mr Singh’s dismissal was neither harsh,
unfair nor unreasonable, and dismissed his application.14
Mr Singh’s appeal grounds and submissions
[17] Mr Singh submitted that the decision was infected by error, including jurisdictional
error, in five respects, and that the appeal raised for consideration matters of principle and
issues of general significance in respect of the Commission’s jurisdiction under Pt 3-2 of the
FW Act such as to warrant the grant of permission to appeal in the public interest. The five
heads of alleged error, and the submissions made in relation to each of them, may be
summarised as follows:
(1) Failure to give adequate reasons and address centrally relevant submissions
made by Mr Singh: Mr Singh’s evidence was criticised, but no critique or
analysis was made in the Decision of Sydney Trains’ witnesses
notwithstanding detailed submissions having been made about the deficiencies
in their evidence. There was no proper analysis of the five particulars, and they
were dealt with in a single paragraph. Mr Singh’s detailed submissions about
each particular were not addressed. Mr Singh’s credit was irrelevant to a
number of the particulars. The Deputy President was required to give adequate
reasons which identified the basis for the decision reached and the extent to
which the submissions were understood and accepted or rejected. This was not
done.
(2) Failure to identify the seriousness/gravity of the misconduct: In order to
determine whether conduct is sufficiently serious to justify dismissal such as to
constitute a valid reason under s 387(a), or whether a dismissal is harsh
because it is disproportionate to established misconduct, it is necessary to
make findings about the seriousness or gravity of the conduct. The Deputy
President did not do this.
(3) Error of principle/taking into account an irrelevant consideration in assessing
harshness: The Deputy President considered and made a finding about the
appropriateness of the remedy of reinstatement in considering whether the
dismissal was harsh. This was not relevant to a consideration of whether the
13 [2019] FWCFB 2895
14 [2019] FWC 182 at [351]
[2020] FWCFB 884
7
dismissal was unfair, and accordingly the Deputy President misconstrued and
misapplied s 387(h).
(4) Failure to take into account the inordinate delay between suspension and
dismissal: The Deputy President failed to consider the 16-month delay
between suspension and dismissal, and the adverse effect this had on Mr
Singh, as a relevant matter under s 387(h). Rather, the Deputy President dealt
with it under s 387(f)-(g), which involved a misconception as to the nature of
Mr Singh’s case.
(5) Significant errors of fact concerning the five particulars: The first allegation
was refuted by Sydney Trains’ own witnesses, who said that the lookout
method was appropriate. The second allegation was the result of Mr Singh
seeking to prevent a colleague from engaging in unsafe work and, at its
highest, involved a momentary lapse and a mistake of judgment. The third and
fourth allegation were premised on there being a near miss, which was not the
contemporaneous account of the train driver and not the way the incident was
labelled by Sydney Trains, and was in any event reported to the Network
Controller. The fifth allegation was refuted by Sydney Trains’ own witness.
These constituted significant errors of fact.
Consideration
[18] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.15 There is no right to appeal and an appeal may only be made with
the permission of the Commission.
[19] This appeal is one to which s 400 of the FW Act applies. Section 400 of the FW Act
provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.
[20] In the Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v
Lawler and others,16 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised
15 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2) of the FW Act;
see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson
CJ, Gaudron and Hayne JJ
16 [2011] FCAFC 54, 192 FCR 78, 207 IR 177
[2020] FWCFB 884
8
the test under s 400 of the FW Act as “a stringent one.”17 The task of assessing whether the
public interest test is met is a discretionary one involving a broad value judgment.18
[21] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,
identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters”.19
[22] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.20 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.21
[23] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.22
Our task is to determine whether there is an arguable case of appealable error and an apparent
public interest in hearing an appeal on the merits. However, it is still necessary to engage with
the appeal grounds to consider whether they raise an arguable case of appealable error.
[24] In assessing whether Mr Singh’s appeal grounds are sufficiently arguable such as to
render the grant of permission to appeal in the public interest, it is necessary to recognise the
importance of the Level 3 Report in the proceedings below and in the Decision. As earlier
stated, following the incidents on 1 August 2015, Sydney Trains conducted an intensive
investigation which led to the Level 3 Report being produced. The findings and conclusions
of the Level 3 Report relevant to Mr Singh included the following:
“Lookout Working” was an inappropriate method of protection for significant sections
of the track covered by the team’s task on 1 August 2015 where it was prohibited by
the Hazardous Locations Register, and a higher level of protection should have been
used. This method was determined by the Protection Officer, and was not challenged
by the four other qualified Protection Officers in the group (of which Mr Singh was
one).
17 Ibid at [43]
18 O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210, 64 ALJR, 89 ALR 71 per Mason CJ, Brennan, Dawson and Gaudron
JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398, 275 ALR 408 at [69] per Gummow, Hayne,
Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192
FCR 78, 207 IR 177 at [44]-[46]
19 [2010] FWAFB 5343, 197 IR 266 at [27]
20 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
21 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR
388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78,
207 IR 177; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the
Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
22 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[2020] FWCFB 884
9
The Allawah incident was described as one where a train driver reported seeing a
worker on the track without warning who had to jump out of the train’s way.
The Team Leader was acting as “Up Lookout” at the time, but missed the warning
light for the approaching train. That was his only task in that role.
Notwithstanding that the driver did not deem it to be a formal “near miss”, it met the
criteria for a “near miss”, being a “High Potential Incident” (a worker safety incident
where the likely and credible outcome could have been a fatality or permanent
disability). All the members of the team should have been aware of this.
After the incident, the incident should have been reported, work stopped and the
incident investigated. This did not occur. The Team Leader (Mr Singh) had a high
level of responsibility to report the incident and did not, which was understandable as
he was the person who missed the warning light. Instead work was allowed to
continue.
If the Allawah incident had been reported and investigated appropriately, it was likely
that work would have been modified in a way that would have avoided the Kogarah
incident.
The Kogarah incident was described as one in which an infrastructure worker was
“nearly struck” by an unscheduled train service. The worker was about 70 metres
away on the track when observed.
The work group and other team members had a four year history of similar incidents
that had resulted in retraining and coaching.
[25] As earlier stated, the Level 3 Report also identified systemic failings and culpability
on the part of other persons as contributing to the causation of the incidents.
[26] As recorded in the Decision, Mr Singh relied upon the content of the Level 3 Report as
being balanced, helpful and reliable – except where it made adverse findings concerning his
own conduct. In those respects only, Mr Singh sought to contradict the findings of the report
through his own evidence and through the cross-examination of Sydney Trains witnesses who
had no role in the preparation of the report. For the reasons identified in the Decision, that
position was simply not credible. Mr Singh’s own self-exculpatory evidence was not accepted
by the Deputy President who, with the advantage of seeing and hearing Mr Singh’s evidence
as it was given, found that he was not a witness of credit. The Deputy President gave very
detailed reasons for reaching that conclusion. That credit finding was not challenged in Mr
Singh’s notice of appeal. Having perused the transcript of Mr Singh’s evidence, we entirely
agree with that finding.
[27] In the circumstances described, it was open for the Deputy President to proceed upon
the findings and conclusions of the Level 3 Report. Mr Singh’s notice of appeal did not
contend for any contrary conclusion. As can be seen from our summary of the relevant
aspects of the Level 3 Report, it supports each of the five particulars of the allegation of
misconduct which formed the basis of Mr Singh’s dismissal. Indeed, it appears that the
particulars of the allegation were drawn from that report.
[2020] FWCFB 884
10
[28] As is apparent from paragraph [332] of the Decision, the Deputy President’s finding
that there was a valid reason for Mr Singh’s dismissal was founded on his acceptance of the
report and his rejection of the evidence of Mr Singh, together with his acceptance of the
evidence of Mr Lynn where it conflicted with that of Mr Singh. We are satisfied ourselves
that this finding was properly founded on the evidence and was the correct finding.
[29] Bearing these matters in mind, we turn to Mr Singh’s appeal grounds. As to the first
ground, we consider on the basis just explained that the Deputy President’s reasoning as to
why he found that there was valid reason for dismissal is clear, once it is read with his earlier
detailed reasons for rejecting Mr Singh’s evidence both specifically vis-a-vis the Level 3
Report and generally. Arguably, the Deputy President could have stated in greater detail why
he rejected the submissions of Mr Singh in respect of each particular, but it is implicit that he
adopted the analysis in the Level 3 Report and consequently rejected any analysis inconsistent
with this. Even if there was any inadequacy in the Deputy President’s reasons, there is no
reasonable possibility that a different result could pertain in a re-hearing of the matter. In that
sense, the grant of permission to appeal would not be of utility.
[30] In relation to the second appeal ground, the Decision from the outset treated the matter
as involving an assessment of Mr Singh’s culpability as an experienced employee in two
serious safety incidents. Those incidents self-evidently involved a risk of death or serious
injury. The proposition that there was some question needing to be determined about the
seriousness or gravity of the finding of misconduct on Mr Singh’s part in relation to these
incidents is surprising. It has no substantive merit.
[31] In relation to the third appeal ground, we accept that it was not relevant to consider
pursuant to s 387(h) whether the remedy of reinstatement was available, as the Deputy
President did in paragraphs [346]-[348]. However, at paragraph [345], the Deputy President
had already considered those matters which were relevant under s 387(h) and made a finding
that the dismissal was not harsh. Thus paragraphs [346]-[348] were merely a frolic and not
material to the outcome determined by the Deputy President. In relation to the fourth ground,
it is not clear to us why the delay between suspension and dismissal, although worthy of
criticism, could be relevant to or demonstrative of unfairness in the subsequent dismissal. On
one view, Sydney Trains’ foot-dragging benefitted Mr Singh by giving a period of income to
which he would not have been entitled had it proceeded more expeditiously. Finally, as to the
fifth ground, we are not satisfied that there is any reasonably arguable contention of factual
error in respect of any of the five particulars of misconduct once regard is had to the reasoning
and conclusions in the Level 3 Report and Mr Singh’s failure to advance any credible case for
the rejection of the adverse findings in that report.
[32] Mr Singh’s case proceeded and was determined upon its own particular facts. We do
not consider that it raises any issue on novelty or general application or raises any question of
principle, or that it was counter-intuitive or manifested any injustice.
[33] For the reasons given, we do not consider that the grant of permission to appeal
against the Decision would be in the public interest. Accordingly, permission to appeal
against the Decision must be refused in accordance with s 400(1) of the FW Act.
[34] Mr Singh’s appeal against the costs decision remains to be determined, and will now
be listed for hearing.
[2020] FWCFB 884
11
VICE PRESIDENT
Appearances:
P Boncardo of counsel with J Kennedy on behalf of Mr Singh.
M Seck of counsel with A Sharp on behalf of Sydney Trains.
Hearing details:
2019.
Sydney:
13 November.
Printed by authority of the Commonwealth Government Printer
PR716854
OF THE FAIR WORK MISSION THE
