DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Samantha Rombola
v
Rail Commissioner
(U2016/10179)

Application for relief from unfair dismissal – passenger service assistant working in public transport agency – alleged serious misconduct relating to colleagues and a passenger – delay between some alleged misconduct and investigation - misconduct found – whether misconduct condoned – role of policy – whether relevant and conclusive – valid reason for dismissal found – no previous warnings – whether dismissal with pay in lieu of notice justified in these circumstances – on balance dismissal not harsh, unjust or unreasonable – application dismissed.

1. Background and case outline

[1] Ms Samantha Rombola has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal carried out by her former employer, the Rail Commissioner.

[2] The Rail Commissioner is a statutory body corporate established under the Rail Commissioner Act 2009 (SA) and its functions include the operation of public transport services by train or tram in metropolitan Adelaide. The Rail Commissioner is administratively part of the South Australian Department of Planning, Transport and Infrastructure (DPTI) and employs something in the order of 550 employees.

[3] Ms Rombola commenced her employment with the Rail Commissioner on 4 June 2012 as a Passenger Service Assistant (PSA). The responsibilities of a PSA include providing customer service duties on public transport by rendering assistance to passengers and resolving conflicts and problems that may occur, and performing revenue protection duties to ensure customers comply with ticketing and travel requirements. The revenue protection duties involve the monitoring of customers and the completion of reports that may be used in the prosecution of fare evaders and other alleged offenders.

[4] Ms Rombola was dismissed on 29 July 2016 on the basis of alleged misconduct following an investigation into five allegations, four of which the Rail Commissioner found to be substantiated. These allegations are set out in detail later in this decision and involve (in some cases) events that occurred over a period some years prior to the investigation and included alleged bullying and harassment of other employees, in particular, Ms Sharlee Bransden, a PSA and now Relief Shift Coordinator, who at the relevant time was acting as a Vetting Officer. The other allegations include the failure to follow instructions, the inappropriate use of a mobile phone whilst working on a train, and the threatening and disrespectful treatment of a passenger, Ms Maxine Bolland. Some additional matters concerning alleged interactions with other employees that arose during the course of an investigation conducted by the Rail Commissioner were also relied upon by the employer.

[5] Mr Diamond of the Australian Rail, Tram and Bus Industry Union (ARTBIU), who appeared on behalf of Ms Rombola, contends that the dismissal was unfair on the following grounds:

● Prior to her dismissal, Ms Rombola had not received any warnings or been subject to any disciplinary action;
● Ms Rombola continued to work for four months, without issue, from the date of the investigation meeting on 17 March 2015 until she was suspended with pay in July 2015;
● Ms Rombola denies making many of the comments as contended by the Rail Commissioner and that, in any event, some of these alleged incidents occurred up to two years prior to her suspension;
● The Rail Commissioner has not adhered to its own disciplinary procedure which provides that the employer may be viewed as “condoning conduct” if no action is taken within a reasonable time frame. In that regard, the Rail Commissioner had no right to rely upon that alleged conduct in any event;
● Management were aware of, but did not act upon, many of the alleged events now relied upon by the Rail Commissioner;
● Some or all of the allegations are denied, they should not have been substantiated by the investigation, and there were also mitigating circumstances for some of the conduct;
● There was no valid reason for the dismissal;
● There was no serious misconduct as defined in the Rail Commissioner’s disciplinary procedure and there were no prior warnings. As a result, under that procedure, the sanction should have been no more than a warning;
● The full details of certain allegations were not put to Ms Rombola and this led to procedural unfairness; and
● The dismissal had significant unwarranted ramifications for Ms Rombola and was harsh.

[6] Ms Rombola seeks reinstatement to her former position.

[7] Mr Bakewell of EMA Consulting, who appeared with permission for the Rail Commissioner, contends that the dismissal was not unfair. The broad basis of its position includes that:

● Clear policies and procedures applied in the workplace and these were known by Ms Rombola;
● Ms Rombola’s conduct was inconsistent with important elements of these policies;
● The investigation and the evidence before the Commission demonstrates that there was significant misconduct and this provides a valid reason for dismissal related to Ms Rombola’s conduct;
● The process followed by the Rail Commissioner was comprehensive, consistent with its internal policies and meets the procedural fairness requirements of the FW Act;
● The misconduct was not condoned and managers with relevant authority dealt with the matters when raised with them; and
● The dismissal was a proportionate and fair response to the conduct as found by the Rail Commissioner.

2. The evidence

2.1 The witnesses

[8] Ms Rombola provided a sworn statement, gave oral evidence, and was extensively cross-examined. Without being definitive, Ms Rombola gave evidence about the key events associated with this matter, including many that were in dispute. This included that she had at no time breached the professional conduct standards or code of ethics of the Rail Commissioner. I have dealt with the detail of Ms Rombola’s evidence when making findings in relation to each of the various allegations. Her evidence also included the following about the broader context for the events:

• In December 2014 she separated from her husband, (PG), who is also employed by the Rail Commissioner. She alleged that PG created an atmosphere of animosity towards her in the workplace and a group of Rail Commissioner employees began treating her poorly, including ignoring her whenever she was present.



• Ms Rombola had only a vague recollection of events in October 2013 concerning Ms Bransden but denied having refused to follow a reasonable and lawful direction in that regard. The issue was not raised with her at the time and she was not aware she had done anything wrong.



• In March 2015, Ms Rombola made a complaint to her Supervisor, Mr Rocky Caruso, regarding the gossip and rude behaviour that she believed was taking place in relation to her. At around this time she also spoke with a senior manager, Mr Robert Stopp, about her relationship breakdown with PG and how this was affecting her at work.

[9] Ms Rombola also relied upon the evidence of Mr Todd Branwhite, her partner, in relation to certain alleged incidents that are said to have taken place outside of the workplace during the investigation of the other matters.

[10] The Rail Commissioner provided witness statements and led evidence from some 21 witnesses. Each of these witnesses was also cross-examined. The identity of the witnesses, and the broad scope of their evidence, is set out below.

Ms Alisha Quinn – Senior PSA, previously PSA

[11] Ms Quinn’s partner is Ms Rombola’s former husband (PG). Ms Quinn gave evidence about two alleged incidents involving firstly, Ms Rombola and Mr Branwhite deliberately riding past and then stopping outside of Ms Quinn’s house on their motorcycles, and secondly, on another occasion riding near to her house. Ms Quinn subsequently made a report to the Police. Both of these allegations are denied by Ms Rombola and Mr Branwhite.

Ms Cheree Pertini – Senior HR Consultant

[12] Ms Pertini’s evidence went to her involvement in the investigation of the complaint lodged by Ms Bransden against Ms Rombola and some subsequent activities.

Ms Danica Horvat – Team Leader, Claims and Recovery Service, Risk and Assurance

[13] Ms Horvat’s evidence went to two Facebook related incidents. The first being a private message she received from a Rail Commissioner employee to the effect that Ms Rombola had said things about Ms Horvat, behind her back. The second related to Ms Horvat’s discovery of a Facebook post allegedly made by Ms Rombola that she believed to be about Ms Bransden.

Mr Euginio Bria – Senior Training and Development Facilitator for DPTI

[14] Mr Bria was involved in training PSAs, including Ms Rombola. His evidence went largely to a PSA debriefing session that he attended on 12 December 2013. His evidence was that he was so concerned with the lack of respect and integrity demonstrated by Ms Rombola that he wrote an email complaint to the applicant’s Team Leader, Mr Caruso.

Mr James Jeffries – PSA, Relief Senior PSA

[15] Mr Jeffries’ evidence was that he noticed a change in Ms Rombola’s behaviour around the time she became a union delegate. He gave evidence that the applicant was very angry that Ms Bransden had been given the role of Vetting Officer and that she said words to the effect that Ms Bransden was not competent to fulfil the role. His evidence was also that the (child) custody issues between Ms Rombola and her former husband were common knowledge amongst the PSAs.

Ms Jan Ellis - Industrial Relations Officer for Commissioner of Public Employment, previously Manager of Policy for DPTI

[16] Ms Ellis was on a 12 month secondment to the Rail Commissioner and became involved in the investigation of Ms Rombola’s alleged conduct in November 2015. Her evidence included her involvement in meeting with Ms Quinn to discuss her complaint regarding Ms Rombola.

Ms Kelly White - Reform Management, previously Unit Manager, Human Resources for DPTI

[17] Ms White’s evidence was that she became involved in the investigation involving Ms Rombola and related matters in July 2016 and took part in interviews and associated processes from that time.

Ms Leanne Feltus - PSA, in training to be senior PSA

[18] Ms Feltus’ evidence went largely to the events of 6 July 2015, where she and Ms Rombola were the PSAs on board a “Right of Way” train between Adelaide and Gawler.

Ms Louise Millard - Suburban Train Driver - previously PSA

[19] Ms Millard’s evidence concerned alleged comments made by Ms Rombola pertaining to Ms Bransden. She also gave evidence about the basis upon which she preferred not to work with Ms Rombola. This included what she described as Ms Rombola being rude and intimidating toward passengers.

[20] Ms Millard confirmed in cross-examination that she was approached by Mr Bransden (Ms Bransden’s husband) to provide information about Ms Rombola. Ms Millard provided a statement to Mr Bransden. Ms Millard refuted the suggestion that she was friends with Ms Bransden but rather stated that she was willing to assist someone whom she thought was being bullied, given her own previous experience at work.

Mr Luke Bielby - PSA

[21] Mr Bielby’s evidence went to his experiences with working with Ms Rombola. His evidence was that swearing was common in the workplace but that he had heard Ms Rombola make various derogatory comments about Ms Bransden. This included Ms Rombola making comments about Ms Bransden to other PSAs when Ms Bransden was also in the room and personally witnessing Ms Rombola making various derogatory statements directly to Ms Bransden. In cross-examination he admitted that he hadn’t reported these incidents to management.

Ms Maxine Bolland - passenger who lodged complaints with Rail Commissioner

[22] Ms Bolland gave evidence in relation to two alleged events involving Ms Rombola. The first occurred on 15 June 2015 while Ms Bolland was catching a train on which the applicant was working as a PSA.

[23] The second incident occurred on 6 July 2015 and involved Ms Rombola allegedly acting aggressively and inappropriately towards Ms Bolland in light of a complaint made by Ms Bolland about the earlier incident.

Ms Moragh Kennedy - PSA and Relief Shift Coordinator

[24] Ms Kennedy’s evidence went largely to the statements and conduct of Ms Rombola with respect to Ms Bransden. Ms Kennedy also witnessed some of the events of 8 October 2013, which led to an allegation concerning Ms Rombola’s refusal to comply with a direction.

[25] Ms Kennedy indicated that she had observed some of these events in her capacity as a Relief Shift Coordinator and had passed on her concerns in relation to some of these to Managers.

[26] Ms Kennedy was also asked in cross-examination about the existence of perspex screens on the trains and the PSAs’ use of them to observe passengers. Her evidence was that this was not common practice but could be used by PSAs as a means of safely observing someone if they believed the passenger may be dangerous.

Mr Paul Gelston - Chief Operating Officer, delegate in charge of the decision to dismiss Ms Rombola

[27] Mr Gelston was the ultimate decision maker and his evidence involved that process in relation to Ms Rombola’s dismissal and the application of the Rail Commissioner’s Discipline Procedure. His evidence was that his decision was based on the written information provided to him and that this supported his conclusion that 4 of the 5 allegations were substantiated. It was these allegations, considered together, that led to his conclusion that the applicant’s behaviour amounted to serious misconduct. Mr Gelston was cross-examined on his knowledge of the allegations in March 2015, and allowing Ms Rombola to continue working until July 2015. Mr Gelston’s evidence was that he was obligated to treat everyone fairly and an investigation had to be conducted before a decision to stand down the applicant could be made.

Mr Paul Henderson - Shift Coordinator

[28] Mr Henderson was Ms Rombola’s direct supervisor for much of the time while on shift. He gave evidence about Ms Rombola’s negative response to the appointment of Ms Bransden as the Vetting Officer, including comments made in the PSA room. His evidence also included that inappropriate language was common among the PSA group, including Ms Rombola, although he had never disciplined her for it. In re-examination he confirmed that in any event he had no authority to discipline the applicant for this type of behaviour, given his role.

Mr Paul Simionato - Operations Manager for the National Heavy Vehicle Regulator, previously Manager of Compliance, Investigation, Prosecution and Claims with the Rail Commissioner

[29] Mr Simionato’s evidence went to the role of the prosecutions department, and its involvement with the PSA group. His evidence was that reports from PSAs regarding incidents on trains would be sent to the prosecutions department and they would decide whether to issue an expiation notice or lay charges in the Magistrates’ Court. Ms Bransden’s role as the Vetting Officer was to act as a conduit between the PSAs and the prosecutions department. Mr Simionato’s evidence was that he had little direct involvement with Ms Rombola but did note that she was quite vocal in legal matters and lacked faith in the legal enforcement process.

Mr Robert Langford - PSA and Relief Shift Coordinator

[30] Mr Langford was the shift coordinator on duty on 8 October 2013 when an incident involving Ms Rombola allegedly refusing a reasonable direction occurred. His evidence went largely to events of that day. It was his evidence that he had directed Ms Rombola to speak to Ms Bransden, which she refused to do.

Mr Robert Stopp - Manager, Rail Operations

[31] Mr Stopp’s evidence was that he does have the decision making ability to suspend an employee from duty, however in the case of Ms Rombola he was not the delegate in charge of making that decision. Mr Stopp was aware of all the allegations at the end of March 2015 and took the decision to separate Ms Bransden and Ms Rombola through shift allocations. Mr Stopp also gave evidence that he could no longer guarantee that separation as the Vetting Officer role had come to an end and Ms Bransden had returned to undertaking shifts as a PSA and in other roles.

[32] Mr Stopp’s evidence also went to the way in which policies and procedures are published and how employees have access to these documents. Further, he dealt with actions that were taken by him to attempt to deal with the issues between Ms Rombola and PG as they might involve the workplace.

Ms Robyn Sayers - PSA

[33] Ms Sayers’ evidence went to the role of a PSA on a Right of Way train and to the incident of 15 June 2015 where Ms Rombola allegedly spent the entirety of the trip on her phone.

Mr Rocky Caruso - Team Leader, Operational Services for Rail Operations

[34] Mr Caruso’s evidence largely went to his role as the first level of management. His evidence was that when a grievance is lodged, he would investigate the matter and determine the appropriate discipline, if any, and would escalate the matter if required. His evidence was that he was on leave at the time Ms Bransden lodged her complaint and became aware of the allegations against Ms Rombola upon his return and these matters were then escalated to more senior management. Mr Caruso indicated that he considered that Ms Rombola was jealous of Ms Bransden and the fact that she had been given the Vetting Officer position, although did not personally witness any behaviour that would require him to act upon in a disciplinary capacity. Mr Caruso also gave evidence is relation to a previous issue involving Ms Rombola and another PSA, and that in that instance he spoke with both parties, conducted a mediation, and did not issue any warnings. He also gave evidence that he intervened in relation to an issue arising from a complaint made by Ms Horvat about Ms Rombola’s Facebook comments and “nipped it in the bud”.

Ms Sascha Hage - PSA

[35] Ms Hage’s evidence went largely to an alleged incident on 8 June 2016 which involved an exchange between herself and Ms Rombola said to be associated with the investigation being conducted by the Rail Commissioner at the time.

Mr Shane Collins - PSA

[36] Mr Collins gave evidence about an event in January 2015 where Ms Bransden had requested changes to a report he had prepared. Mr Collins’ evidence was that he may have voiced some concerns about this to Ms Rombola but was himself responsible for the need to make changes. He also stated that he would sometimes use the windows or the reflection in the windows to monitor passengers. His evidence was that this was not company policy but is a method used by the PSAs.

Ms Sharlee Bransden - PSA and Relief Shift Coordinator, previously Vetting Officer

[37] Ms Bransden’s evidence concerned her complaints against Ms Rombola as outlined in the allegations set out later in this decision and related events.

2.2 Observations about the witnesses

[38] Each of these witnesses was subject to cross-examination. I note however that many of the Rail Commissioner’s witnesses were not challenged on the substance of their evidence where that related to some of the less recent allegations.

[39] I have considered all of the evidence presented in this matter and assessed the credibility and consistency of that evidence. In general terms, and subject to what follows, I found that each of the witnesses gave their evidence in an open and honest manner. There are differences of recollection as to some details and different views as to what was fair and reasonable and how the relevant policies should have been applied. These latter matters are primarily issues for the Commission to determine for itself.

[40] There are however some major and significant factual disputes and given these, it is appropriate to make some observations about the evidence of those most directly involved in the contested events.

[41] I found that Ms Rombola was unconvincing in relation to some key events. This included her evidence about her attitude and conduct towards Ms Bransden, Ms Bolland and Ms Hage, which was at times inconsistent and not persuasive. In particular, Ms Rombola’s complete denial of making negative comments about Ms Bransden was not credible. Even allowing for the passage of time, I was also left with the impression that Ms Rombola had particular difficulty recalling events that were not helpful to her case. Ms Rombola could also not recall many of the earlier events whilst being cross-examined despite having provided responses to the Rail Commissioner on some of these matters during the more recent investigation. This did not mean that I discounted her evidence completely; however, I have treated it with considerable caution.

[42] I prefer the evidence of Ms Bransden where it conflicts with the evidence of Ms Rombola. Her evidence was more objective, consistent and plausible, and was supported by the evidence of many other witnesses.

[43] Ms Bolland’s evidence about her (lack of) dealings with Ms Rombola prior to the events in 2015, was plausible and convincing. I also accept that she genuinely considered that Ms Rombola had acted inappropriately when speaking on her mobile phone while on duty and had later attempted to intimidate her during a subsequent train trip after Ms Bolland had made a complaint against the applicant. I do however consider that her treatment tended to lead to some subjectivity in her evidence regarding some of the details of Ms Rombola’s conduct.

[44] Ms Quinn’s evidence concerned allegations that Ms Rombola and her new partner had stopped outside (and in another case were travelling near) her house, which she shares with Ms Rombola’s ex-husband, on their motorbikes. Without going into the personal affairs of these parties, the relationships between the new couples and their counterparts are difficult. This provides some of the context for these particular allegations. Given the enmity that exists between these parties, I am cautious about the evidence of their interactions. It is likely that the second allegation, that Ms Rombola and her partner were nearby to Ms Quinn’s house, is a case of mistaken identity given that there is objective evidence that the applicant and her partner were not in Adelaide at the time. There is a direct dispute about the first allegation and where there is conflict about that I marginally prefer the evidence of Ms Quinn.

[45] I prefer the evidence of Ms Hage over that of Ms Rombola where there is direct conflict about the events in the cake supply store. Ms Hage’s evidence was consistent and convincing. Mr Branwhite’s evidence was supportive of Ms Rombola’s version and although he indicated that he kept an eye on Ms Rombola from a distance during the alleged exchange, he did not directly witness that exchange.

[46] Both parties relied upon extensive written evidence as part of their cases and I have had regard to that material.

[47] In my consideration of the disputed evidence and making my findings of fact on the more serious allegations in this matter, I have had regard to the approach of Dixon J in Briginshaw v Briginshaw¹ as follows:

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

[48] Further, I note that in Budd v Dampier Salt Ltd² a Full Bench of the Australian Industrial Relations Commission said the following in relation to Briginshaw v Briginshaw:

“[14] The second ground of appeal is that the Commissioner erred in the application of the principle in Briginshaw. So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: “The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.”

[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. Furthermore, it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities. Counsel for the appellant contended that the Commissioner failed to have regard to the seriousness of the situation for the appellant in making findings of fact as to what had occurred and in deciding that there were no extenuating circumstances for the appellant's behaviour.

[16] In relation to fact finding, the Commissioner analyzed the evidence with care. In making findings he indicated how the findings were reached, in particular why he rejected some evidence and accepted other evidence. There was no error in the fact-finding process. To the extent that this ground involves a contention that the Commissioner did not exercise the statutory discretion properly it should also be rejected. Briginshaw was a case concerned with the nature of findings about conduct. It is potentially misleading and unnecessarily complicated to attempt to apply Briginshaw to the exercise of judgement required once the findings about conduct have been made. Section 652(3) specifies the way in which the discretion is to be exercised and the matters to be taken into account. Loss of employment is a serious matter and applications for a remedy are to be dealt with seriously. That the Commissioner so regarded it in this case is clear from his decision. There is no basis on which to conclude that the Commissioner's approach to the fact-finding process or to the exercise of the discretion was erroneous because of anything said by the Court in Briginshaw. The second ground of appeal must be rejected.”

3. Findings on the general context and the events leading to the dismissal

3.1 The workplace

[49] There are various positions and roles undertaken within the Rail Commissioner’s operations. These include various levels of management, supervisory and coordinating staff, and operational employees. It is not uncommon for operational staff to act in supervisory positions from time to time.

[50] Ms Rombola as a PSA was supervised by various supervisors and others in leadership roles, who then reported to Managers.

[51] The supervisors are part of the management team in general terms; however, they are not authorised to directly undertake disciplinary action. 3 This appears to be a reflection of the centralisation of formal disciplinary functions and acknowledgement of the acting positions regularly undertaken by operational staff from time to time. I will return to this aspect as part of my consideration of the discipline procedures of the Rail Commissioner and the matter more generally.

[52] Ms Bransden was appointed to the position of Vetting Officer in July 2013. The Vetting Officer position was a more prestigious role to that of a PSA but was not a supervisory position. It is evident that both Ms Bransden and Ms Rombola applied for the Vetting Officer position and that Ms Rombola was resentful of the fact that she was not successful. This was reflected in her attitude and conduct towards Ms Bransden.

[53] It is evident to me that the breakdown in the marriage between Ms Rombola and PG had an impact on some working relationships within the Rail Commissioner’s operations. This included the likelihood that some employees took sides in the breakup and there were some operational constraints put in place associated with the need to keep Ms Rombola and PG apart in the workplace. I do not, however, accept that Ms Bransden, or most of the other employees who gave evidence in this matter, have been directly impacted by those events so as to alter their dealings with Ms Rombola in the workplace or to influence their evidence before the Commission.

3.2 The making of the allegations, the investigation and the dismissal

[54] On 7 January 2015, Ms Bransden made a formal bullying complaint against Ms Rombola. This was the first formal complaint made by Ms Bransden in that context and a detailed statement providing the alleged history of conduct by Ms Rombola was provided to the Rail Commissioner on 15 January 2015.

[55] Ms Pertini gave evidence that Ms Bransden attended with her husband as her support person to provide the 15 January statement. During this meeting Mr Bransden produced notes from Rail Commissioner employees with whom he had already spoken. Ms Pertini’s evidence was that she was concerned that some employees who provided information may have believed Mr Bransden was working on behalf of the Human Resources department rather than simply as a support person for Ms Bransden. This led to Ms Pertini clarifying Mr Bransden’s role in the matter and concluding that he was acting as her representative. Ms Pertini’s evidence was that although she did not rely on the statements obtained by Mr Bransden, she did use them as a means of ascertaining who she should speak to in conducting the investigation. I accept that evidence.

[56] On 10 February 2015, Ms Rombola was advised that an investigation would be conducted.

[57] Between 13 February and 27 March 2015, Ms Pertini interviewed and obtained statements from G Kinross, L Millard, E Bria, S Collins, R Caruso, M Kennedy, R Langford, J Jeffries, P Henderson, P Simionato, L Bielby, and D Horvat.

[58] On 27 February 2015, following a request, Ms Rombola was provided with broad particulars of the allegations being investigated.

[59] Following a request made by the Rail Commissioner on 3 March 2015, Ms Rombola attended an investigation interview conducted on 17 March 2015, along with Ms Kaye Brown from the ARTBIU. Ms Staples, Mr Stopp and Ms Pertini attended for the employer.

[60] I note that there was a telephone call between Ms Pertini and Ms Rombola on 11 March 2015, being the date the investigation interview was initially scheduled. Ms Pertini’s evidence was that when Ms Rombola did not attend that day, she telephoned her to ascertain why the applicant had not attended. Ms Rombola advised Ms Pertini that she was sick. Ms Pertini queried whether her illness was of a personal or workers’ compensation nature. She did so because the Rail Commissioner may have the ability to compel an employee to attend the workplace if it is a workers’ compensation matter, but cannot do so if of the illness is of a personal nature. Ms Pertini’s evidence was that Ms Rombola became quite agitated, repeatedly swearing at her. It is evident that Ms Rombola took exception to the inquiry and became upset. Ms Pertini terminated the call and then telephoned Ms Brown of the RTBIU, who had already spoken to Ms Rombola and advised Ms Pertini that she should remove herself from the investigation. Ms Pertini elected to “hand over” the investigation to another HR officer.

[61] On 10 July 2015, Ms Rombola was notified that the Rail Commissioner intended to suspend her from work (direct her not to attend) on full pay and advised that she could provide a response to that proposition. A response, opposing the suspension, was provided by Ms Rombola on 21 July 2015.

[62] The suspension of Ms Rombola was confirmed in a letter dated 21 August 2015, following an internal review by management of the Rail Commissioner.

[63] Ms Rombola was notified of the formal allegations, by letter, on 21 September 2015 which stated:

“… …
I suspect on reasonable grounds that you have committed misconduct and are thereby liable to disciplinary action. The bases for my suspicions are as follows:

Ground 1
1. On 6 January 2015 at 12:30pm, you uploaded an inappropriate post on the social media website, Facebook. The post was in relation to Ms Sharlee Bransden. You called her a derogatory name and alleged that she had committed an illegal act in the performance of her duties. You behaved in an improper and disgraceful manner.
Particulars

1.1 At all material times, you were an employee within the Rail Commissioner, within the Department of Planning Transport and Infrastructure (“the Departnment”) performing the duties of a Passenger Service Assistance (“PSA”).
1.2 You are employed pursuant to the Rail Commissioner Act 2001. You are also bound by the Code of Ethics for the South Australian Public Sector (“the Code of Ethics”) which is issued by the Commissioner for Public Sector Employment pursuant to the Public Sector Act 2009 (“PS Act”). The Professional Conduct Stansards inhe Code of Ethics are the disciplinary provisions of the public sector code of conduct pursuant to section 15(1)(b) of the PS Act.
1.3 On 6 January 2015, you accessed your Facebook account, which is registered under the name of Sammy Fonzarelli.
1.4 At about 12:30pm, you uploaded the following public status update on Facebook:

“I cant (sic) believe that wanker convinced someone to change their report! That’s fkn (sic) illegal!”

1.5 The comment was in reference to Ms Bransden who had discussed amendments to a report with Mr Shane Collins that day as part of her duties as Vetting Officer.
1.6 At all material times, you were bound to comply with the Whole of Government Guideline: ‘Social Media – Guidance for Media and Staff’ (“the Guideline”).
1.7 Your conduct in paragraphs 1.3 and 1.4 breached the Social Media Guideline.
1.8 Your actions were, on the face of it, contrary to the following provisions of the Professional Conduct Standards of the Code of Ethics:

Professional and courteous behaviour

• Public sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector of Government into disrepute; or that is otherwise improper or disgraceful. And,



• Public sector employees will at all times treat other persons with respect and courtesy.

1.9 I believe a reasonable person would view your conduct as bringing you, the Department, public sector and/or Government into disrepute and I view it as otherwise improper.

Ground 2
2. Between about July 2013 and April 2015 (“the said period”), you treated colleagues in a disrespectful manner on a number of occasions and/or otherwise behaved in an improper manner in the workplace.
Particulars

2.1 Particulars 1.1 and 1.2 are repeated.
2.2 On or about July 2013, you said to Mr Greg Kinross about Ms Bransden:

“That fucking bitch only got the job because she worked at the Port with Rocky.”

2.3 On or about October 2014, you said to Ms Bransden words to the effect of:

“You’re a nobody”

2.4 In January 2014, Ms Louise Millard witnessed that you said, in reference to Ms Bransden, words to the effect of:

“Who was she rooting to get that job”

2.5 On or about June 2014, you discussed prosecution reports with Mr James Jeffries and in regards to Ms Bransden, you said words to the effect of:

“I’m not going to do it if she’s got anything to do with it”
And
“[she is] two-faced and can’t be trusted”.

2.6 On or around 8 April 2014, a report was returned to you by Ms Bransden and Mr Luke Bielby witnessed that you said words to the effect of:

“This fucking cunt is always harassing me with reports. She thinks her reports are so good”.

2.7 During the said period Ms Kennedy witnessed that you said, in regards to Ms Bransden, words to the effect of:

“Why’s she so special she got the job, I’m more qualified, I’m not doing anything for her. She can get fucked, I don’t have to have anything to do with Sharlee”

2.8 During the said period, Ms Millard witnessed that you made the following comments in regards to Ms Bransden:
“That fucking slag is here again”;
“What’s that fucking bitch doing here”;
“I’m more qualified than her”;
“Who the fuck does she think she is? She is the same as us – a PSA”;
“This is fucking bullshit” (and then you walked out and slammed the door when Ms Bransden was giving a brief on reports);
And
“I’m not doing that, I’m not changing my fucking report” (upon receiving a report back from Ms Bransden).
2.9 During the said period, Mr Kinross witnessed that you said in reference to Ms Bransden, words to the effect of:
“I’m not doing anything for her, she can get fucked”
“I’m not doing fines, she can get fucked”;
“No, I won’t do it”;
“That fucking bitch, I don’t have to do any reports”
2.10 Your actions were, on the face of it, contrary to the following provisions of the Professional Conduct Standards of the Code of Ethics:

Professional and courteous behaviour

• Public sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector of Government into disrepute; or that is otherwise improper or disgraceful. And,



• Public sector employees will at all times treat other persons with respect and courtesy.

2.11 I believe a reasonable person would view your conduct as bringing you, the Department, public sector and/or Government into disrepute and I view it as otherwise improper.

Ground 3
3. On 8 October 2013, you contravened or failed to comply with reasonable and lawful managerial direction given to you by Mr Robert Langford, Shift Coordinator to speak to Ms Bransden regarding a report. You also treated colleagues in a disrespectful and discourteous manner and/or otherwise behaved in an improper manner in the workplace.
Particulars

3.1 Particulars 1.1 and 1.2 are repeated.
3.2 On 8 October 2013 at about 12:08pm, Ms Bransden approached you in the PSA workgroup room and asked if you had a “minute to spare” to discuss a report.
3.3 You refused to speak to Ms Bransden as you said that you were required to work on the barriers.
3.4 You had recently returned from annual leave for a period of six weeks. Prior to going on leave, you ignored Ms Bransden’s phone calls to discuss the report or hung up on her.
3.5 Ms Bransden again asked to speak to you quickly before you left but you ignored her and walked out of the room.
3.6 You did not attend at the barriers, as you had indicated to Ms Bransden, and instead sat in Jasper’s Café.
3.7 Mr Langford telephoned you and asked you to speak to Ms Bransden. You refused.
3.8 In reference to discussing the report with Ms Bransden, Mr Langford witnessed that you said “the bitch can wait”.
3.9 Mr Langford physically located you to the PSA room and directed you to speak to Ms Bransden.
3.10 You walked into the PSA workgroup room but ignored Ms Bransden and did not approach her.
3.11 Ms Kennedy asked you if you had an appointment with Ms Bransden that day to which you responded by saying: “Im supposed to see Sharlee today but she can get fucked.”
3.12 Your actions were, on the face of it, contrary to the following provisions of the Professional Conduct Standards of the Code of Ethics:

Professional and courteous behaviour

• Public sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector of Government into disrepute; or that is otherwise improper or disgraceful. And,



• Public sector employees will at all times treat other persons with respect and courtesy.

3.13 I believe a reasonable person would view your conduct as bringing you, the Department, public sector and/or Government into disrepute and I view it as otherwise improper.

Ground 4
1. On 15 June 2015, you spoke on a personal phone call whilst on duty for the entirety of the train trip from Adelaide Railway Station to Gawler Central Station.
Particulars

4.1 Particulars 1.1 and 1.2 are repeated.
4.2 On 15 June 2015, you were rostered to work as a PSA on the train from Adelaide Railway Station (“ARS”) to Gawler Central Station (“GCS”).
4.3 You were accompanied by Ms Leanne Feltus, PSA.
4.4 Upon boarding the train to GCS at about 5:53pm, you checked all of the tickets in the first carriage.
4.5 You spoke on your mobile phone, on a personal call for the entirety of the trip whilst on duty.
4.6 You were oblivious to your surroundings and Ms Feltus had to check tickets with passengers without your assistance.
4.7 You failed to perform your duties as a PSA.
4.8 Your actions were, on the face of it, contrary to the following provisions of the Professional Conduct Standards of the Code of Ethics:

Professional and courteous behaviour

• Public sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector of Government into disrepute; or that is otherwise improper or disgraceful.



• Public sector employees will at all times treat other persons with respect and courtesy.



• Public sector employees will be diligent in the discharge of their role and duties and not act in a way that is negligent. And,



• Public sector employees shall use Government/public resources that are the property of the Crown efficiently and only for appropriate purposes as authorised.

4.9 I believe a reasonable person would view your conduct as bringing you, the Department, public sector and/or Government into disrepute and I view it as otherwise improper.

Ground 5
2. On 6 July 2015 at about 5.53pm, you treated a passenger in a disrespectful and discourteous manner whilst on duty as a PSA on the train from ARS to GCS.

Particulars

5.1 Particulars 1.1, 1.2 and 4.2 to 4.7 are repeated.
5.2 On 6 July 2015, Ms Maxine Bollard (sic – Bolland), a passenger was travelling on the 5.53pm train to GCS.
5.3 You indicated to Ms Bollard and said to Ms Feltus words to the effect of:

“that’s the girl that was huffing and puffing about me”

5.4 You made the comment in relation to having seen Ms Bollard on the train journey on 15 June 2015 during which you took a personal call.
5.5 You again referred to Ms Bollard and said “the one with the coffee” and ensured you spoke loudly enough so that Ms Bollard could hear you.
5.6 For the entirety of the train journey, you stared at Ms Bollard in an intimidating manner. At times you stared at her through the reflection in the window.
5.7 At one point during the train trip, you leant on the entrance barrier and stared directly at Ms Bollard.
5.8 You failed to treat Ms Bollard with respect and courtesy
5.9 Your actions were, on the face of it, contrary to the following provisions of the Professional Conduct Standards of the Code of Ethics:

Professional and courteous behaviour

• Public sector employees will not at any time act in a manner that a reasonable person would view as bringing them, the agency in which they work, the public sector of Government into disrepute; or that is otherwise improper or disgraceful. And,



• Public sector employees will at all times treat other persons with respect and courtesy.

5.10 I believe a reasonable person would view your conduct as bringing you, the Department, public sector and/or Government into disrepute and I view it as otherwise improper.” 4

[64] On 29 October 2015, Ms Rombola provided a response which included the following.

● The allegations referred to extended as far back as July 2013 and she would have expected that these would have been raised with her shortly after they took place.
● She had not been afforded due process as the allegations had been ‘held over’ until September 2015.
● She had evidence that some of the statements made against her were made as a result of others soliciting and/or coercing these statements.
In relation to Ground 1:

● The Facebook post was not a reference to Ms Bransden and she did not breach any guidelines in posting the comment.

In relation to Ground 2:

● She denied or did not recall making the statements as alleged in ground 2.

In relation to Ground 3:

● She did not ignore Ms Bransden’s phone calls prior to going on leave.
● She was required to work at the (ticket) barriers but was happy to speak to Ms Bransden at some other time.
● She denied attending at Jasper’s Café, rather than at the barriers.
● She did not recall ignoring Ms Bransden and leaving the room without responding to her question.
● She did not recall refusing to speak to Ms Bransden when Mr Langford telephoned her and she did not recall him physically locating her and directing her to speak with Ms Bransden.
● She did not use the words ‘get f…ed’.

In relation to Ground 4:

● She took two calls in relation to urgent personal matters but did not speak on her phone for the entirety of the trip.

In relation to Ground 5:

● She recalled Ms Bolland being on the train.
● She did not recall what she said to Ms Feltus but had a vague recollection of saying that Ms Bolland had been on a previous train and had been very aggressive toward her for no reason.
● She denied deliberately speaking loud enough for Ms Bolland to overhear.
● She denied staring at Ms Bolland in an intimidating manner for the entire train journey.
● She denied leaning on the entrance barrier and staring directly at Ms Bolland.
● She now recognised Ms Bolland as a woman who had attended a handbag party that she also attended and worked at the Courts but did not remember her at the time.

● She had been reliably informed that while absent from the workplace her name and reputation had been subject to numerous rumours and innuendo without intervention by management.
● She believed she was being discriminated against because of her hearing difficulties.
● She believed there had been a breach of confidentiality by management and that employees had used the opportunity to ‘mount a vendetta’ against her.
● She believed the directions issued by the Rail Commissioner (the suspension) had put her at a significant disadvantage as she was unable to obtain her own statements from other employees.

[65] On 24 May 2016, Ms Rombola was notified by letter of the findings of the Rail Commissioner in relation to the alleged misconduct. The letter stated as follows:

“… …
I have carefully considered your submissions of 29 October 2015 and the available evidence.

I hereby advise that I find allegations 2, 3, 4 and 5 of the particulars in respect of those allegations proven on the balance of probabilities. It follows that I find as a matter of fact that have you committed misconduct. I find that in your role as PSA, you have acted inappropriately and acted in a belligerent, intimidating and unprofessional manner towards Ms Bransden, other employees and a member of the public. I view the totality of your misconduct as serious.

In considering an appropriate response to your misconduct, I take the following into account:

• You have only been employed with the Department for three years; and



• You work in a customer service environment and I am entitled to expect that you will conduct yourself in such a way as to not bring yourself, the Department, public sector and/or Government into disrepute.

I am of the view that the appropriate disciplinary action in the circumstances is termination of your employment.” 5

[66] Ms Rombola provided a response to the letter of findings on 17 June 2016 which included the following:

● She had an exemplary employment record and had demonstrated a very positive work ethic including being an active participant in the workplace.
● She was aware that, prior to any formal allegations, Ms Bransden’s husband had been soliciting statements from Rail Commissioner employees, particularly PSAs.
● Had the Rail Commissioner followed through with its initial proposal of mediation, this would have ‘nipped it (the issues) in the bud’.
● The allegations were put to her in 3 stages over a six month period and the addition of allegations over time amounts to unfair treatment.
● The incidents referred to in the witness statements dated back to July 2013 and that is inconsistent with the definition of “condoning misconduct” found in the Discipline Procedure.
● The witness statements were largely made up of assumptions and generalisations and a link could be drawn from the employees that provided witness statements and the “factional groups within the workplace”.
● She had submitted her own complaints regarding harassment and bullying and these had not been investigated.
● She had concerns that Ms Pertini was still involved in the investigation despite requesting to have her removed.
● In relation to ground 1, this was not substantiated.
● In relation to grounds 2 and 3, these were not raised within a reasonable timeframe as required by the discipline procedure and should not be considered.
● In relation to ground 4, her recollection was that she was on numerous phone calls that were not just personal in nature and that as a Right of Way train does not require tickets to be checked, the second PSA is purely there for assistance.
● In relation to ground 5, she recognised Ms Bolland as someone who had attended a handbag party where they had had a disagreement and that Ms Bolland had a problem with her. She had been notified by her manager to be cautious of a female passenger that had previously been travelling the Gawler line and asking about the role of PSAs. She believed this person to be Ms Bolland.
● She welcomed any training the Rail Commissioner deemed necessary regarding clear expectations of South Australian Government employees.
● She proposed the option of redeployment to another area of the South Australian Government as a resolution to the problem.

[67] On 12 July 2016, Ms Rombola provided some additional information in relation to alleged bullying by PG and disclosed details of a Federal Circuit Court order concerning her ex-husband. These orders were made by consent and included an injunction upon the ex-husband from communicating directly or indirectly, approaching, assaulting, harassing and/or intimidating the applicant or attending within a 30 metre radius of her home or their children’s school.  6

[68] A further meeting to discuss the allegations against the applicant and her response was held on 15 July 2016 with Ms Rombola, and this also involved Mr Darren Phillips of the ARTBIU, Mr Gelston and Ms White. Ms Rombola made certain observations about the culture of the workplace and indicated that she would, in the future, be an “anti-bullying advocate”.

[69] During the course of a subsequent meeting between the same parties on 29 July 2016, a letter, dated 25 July 2016, from Mr Gelston to Ms Rombola was provided which confirmed his decision to terminate Ms Rombola’s employment. That letter stated:

“… …

I refer to my previous correspondence, in particular:
● my letter to you of 21 September 2015 setting out allegations of misconduct against you;
● your submission dated 29 October 2015 responding to the allegations;
● my letter of 24 May 2016 advising of my findings of fact and intention to terminate your employment and
● your submission in response to the notice of intention to terminate your employment dated 17 June 2016.

We met on 15 July 2016 where I provided you with the opportunity to add any other issues or mitigating circumstances. In summary you submitted that:
● you were not aware of any performance issues particularly relating to communication;
● you believe the witness statements made in the investigation were for self-gain;
● you spoke of the negative culture in the work environment;
● you feel that you are a trustworthy, respectful and supportive person and reflect this in the workplace.

I have used the period since our meeting on 15 July 2016 to carefully consider the additional information provided at our meeting and the written and verbal submissions you have previously made.

Having considered all the available information, my findings of misconduct as per my letter of 24 May 2016 remain unchanged.

… …

Having considered the seriousness of the misconduct that has been proven on the balance of probabilities as outlined above, I remain of the view the appropriate disciplinary action is to terminate your employment with the Rail Commissioner effective from the date of this letter.” 7

[70] Ms Rombola’s dismissal was effective on 29 July 2016 but involved the provision of 3 weeks’ pay in lieu of notice.

3.3 Other matters relied upon by the Rail Commissioner

[71] In addition to the matters identified in the formal allegations made on 21 September 2015, the Rail Commissioner also relies upon two further matters, at least for certain purposes of this application. These matters are outlined below.

The alleged incidents involving motorcycles near the home of Ms Quinn

[72] The first alleged incident occurred on 13 May 2016, when the applicant and her partner allegedly rode past Ms Quinn’s house on motorcycles, stopping in front of the house and revving their engines. The second incident occurred on 11 June 2016 when Ms Quinn allegedly saw the applicant and her partner riding their motorbikes on a street adjacent to hers. Ms Quinn subsequently made a report to the Police.

[73] The Rail Commissioner relies upon these allegations as part of any consideration of remedy, should that arise.

[74] Ms Rombola denies both of these allegations and relied upon the evidence of Mr Branwhite in support of that position. That evidence includes that Ms Rombola and Mr Branwhite were not in Adelaide on 11 June 2016.

The alleged cake supply store incident with Ms Hage

[75] This alleged incident occurred when Ms Hage and Ms Rombola were both at a cake supply store on 8 June 2016. Ms Rombola allegedly engaged in verbal abuse toward Ms Hage in front of Ms Hage’s son.

[76] Ms Hage’s evidence was that whilst on annual leave she “crossed paths” with Ms Rombola and was shocked to see her at her local cake shop. After acknowledging Ms Rombola by saying “Sam!”, Ms Rombola glared at her and initially walked off but immediately returned and said “Sash why do you bother. Why would you even bother? I’ve seen your statement”. Ms Hage indicated that she hadn’t made any statements and Ms Rombola said words to the effect of “Oh get fucked. Why lie? I’ve read your shit on me. Fuck you. You’re full of shit.” Ms Hage made an Employee Operations Report in relation to the incident.

[77] Although not known by the Delegate (Mr Gelston) at the time of the dismissal, the Rail Commissioner relies upon this allegation to support its decision to terminate Ms Rombola.

[78] Ms Rombola denies these allegations. Ms Rombola contends that Ms Hage was the antagonist and first raised the issue of statements being made. I note in that regard that under cross-examination, Ms Rombola denied that she considered that Ms Hage had given a statement in relation to the allegations, 8 but in re-examination, in effect, stated the opposite.9 Ms Rombola also indicated that she had acted to avoid all confrontation. Ms Rombola relies upon the evidence of Mr Branwhite to support her position.

4. Findings in relation to each of the allegations and other matters

[79] The particulars of each of these allegations and Ms Rombola’s general position on these matters are contained in the material set out in Part 3.2 of the decision, and I do not repeat them here. Based upon the evidence that is before the Commission I find as follows in relation to each of the allegations.

Ground 1 – Facebook post – 6 January 2015

[80] The Rail Commissioner did not rely upon this allegation and I have included it only for context.

Ground 2 – Distrustful and discourteous behaviour between July 2013 and April 2015

[81] These matters are generally associated with Ms Rombola’s conduct in relation to Ms Bransden. Ms Bransden’s evidence was that Ms Rombola’s conduct included the following:

● speaking to her in a loud, abrupt and rude manner and belittling her in front of other PSAs;

● not returning phone calls and avoiding engaging in matters with her;

● ignoring reasonable requests to provide reports or clarification of statements made in reports and challenging her right to request such matters in an aggressive manner in front of other PSAs; and

● rudely interrupting during a briefing that was being conducted in conjunction with the prosecutions unit and abruptly leaving the meeting.

[82] I find that the substance of this conduct, and the conduct as alleged in the particulars, did occur. The evidence also supports the notion that other comments and conduct consistent with Ms Rombola’s strong resentment towards Ms Bransden in her role as Vetting Officer occurred during this period. This includes the concerns raised by Mr Bria about the applicant’s conduct during a meeting he attended. In that respect, whilst it was reasonable for Ms Rombola to raise issues about work requirements it was the manner of her approach that Mr Bria rightly took exception to.

[83] I note in this regard that Ms Rombola stated in her evidence that she was also successful in her application for the Vetting Officer role as she was given the role of backup to Ms Bransden. Whilst this is apparently correct, it is evident that this was only a notional role and not acted upon in practice. I find that this did not, in fact, ameliorate Ms Rombola’s response to not being given the primary position as she indicated, but rather, probably compounded her resentment.

[84] The evidence supporting the findings of misconduct in this respect was strong, direct, consistent and largely unchallenged. The conduct as demonstrated by the evidence was more than bad language. The tone and manner of the comments and the associated conduct was clearly unreasonable and properly described as serious bullying, even in a robust workplace where inappropriate language was common and tensions between employees were known to exist. There is no reliable evidence that the degree of serious behaviour that Ms Rombola exhibited towards Ms Bransden was common in the workplace.

[85] Individual aspects of this conduct were however known to various supervisors and operational staff but were not addressed with Ms Rombola or, at least in general terms, escalated to the relevant Managers at the time. Mr Bria did however directly raise his concerns with Ms Caruso. The entire pattern of conduct was not reported to management until Ms Bransden made her formal complaint in January 2015.

Ground 3 – Failure to comply with a reasonable and lawful managerial direction and treatment of colleagues in a distrustful and discourteous manner – 8 October 2013

[86] I find that the substance of this conduct as alleged in the particulars did occur. I find that Mr Langford gave what was a reasonable and lawful direction for Ms Rombola to meet with Ms Bransden to discuss a revenue protection report. Although Ms Rombola did eventually speak with Ms Bransden after Ms Bransden again approached the applicant, this occurred after much delay, avoidance of Ms Bransden, and protest. This was reflective of her continuing resentment at the appointment of Ms Bransden to the position of Vetting Officer.

[87] This conduct was clearly known by Mr Langford, whose direction it was that was being ignored, and to other employees, but was not addressed with Ms Rombola or escalated to the relevant Managers at the time.

Ground 4 – Use of mobile phone whilst on duty for the entirety of a train trip – 15 June 2015

[88] Ms Bolland’s evidence largely supported the particulars outlined in relation to this allegation. Her evidence was that Ms Rombola was on her phone for the entirety of the journey from Adelaide to Gawler Central, except for the first fifteen minutes when she was checking tickets, and that it appeared to be a personal call. Her evidence was that other passengers on the train noticed and commented on the applicant’s behaviour. Ms Bolland subsequently lodged a complaint with the Rail Commissioner.

[89] Ms Rombola indicated in evidence that she had two phones – one work and one personal phone. She further states that it was likely that her work phone would have been diverted to her personal phone on the day in question, albeit that it is also possible that she was carrying both phones. In a written response to the allegations, Ms Rombola accepted that she took multiple calls on this trip, which were mostly related to work – in the context of industrial negotiations taking place at that time, although it is possible that she took a personal call as her father had recently passed away.

[90] Ms Sayers’ evidence was that Ms Rombola took a number of phone calls during this trip and was on the phone for the majority of the time. She could not confirm the number of calls or state whether they were personal in nature.

[91] The reliable evidence supports the notion that this alleged conduct occurred, largely as contended. It is not likely that Ms Rombola was checking tickets given the nature of the right of way journey, but this does not detract from Ms Bolland’s substantive evidence. That is, Ms Rombola used her mobile phone very extensively during the course of the trip and this involved one or more personal calls. Ms Rombola did attend to the duties at each train stop but then returned to the phone calls. In that regard, based upon the evidence of practice and expectations, it is generally expected that work calls will be attended to where that can be done without interference with the PSAs’ immediate duties and some limited personal calls may be tolerated. However, the calls were a distraction to her work outside of the stops at each station, beyond the reasonable use of the phone whilst working, and were observed by a number of passengers. This conduct was not appropriate. However, there were some personal mitigating circumstances and the calls did not cover the entirety of the trip.

[92] Ms Bolland made a complaint about the issue and this formed part of the investigation and disciplinary process that followed.

Ground 5 – Disrespectful conduct towards a passenger – Ms Bolland – 6 July 2015

[93] Ms Bolland’s evidence was largely consistent with the particulars set out for this allegation. It was also Ms Bolland’s evidence that on this trip, the applicant stood at times in front of, but mainly behind, a perspex barrier and stared directly at her whilst smirking for much of the duration of the train journey. Ms Bolland further stated that at the end of the journey she spoke to Ms Rombola and said “I have never met someone so rude in my life”.

[94] In addition, it was also Ms Bolland’s evidence that as she was in the car park of the train station, Ms Rombola alighted from the train and peered around and that she considered that the applicant was looking for her and/or her vehicle. Ms Bolland lodged a written complaint with the Rail Commissioner about these events that same day. That report did not make reference to Ms Rombola looking into the car park.

[95] Ms Rombola contends that she may have looked at Ms Bolland when on the train and said words to the effect of “that’s the girl that put in the complaint about me” but she did not act disrespectfully towards her. Ms Rombola stated that she did not deliberately say this loud enough for Ms Bolland to overhear but if she did raise her voice it was due to the fact that she is completely deaf in one ear. Ms Rombola accepts that she may have looked at Ms Bolland during the trip but not in excess of her duty to monitor passengers.

[96] Ms Rombola also contends that she had had a previous disagreement with Ms Bolland at a handbag party, outside of work, approximately 5 years ago, and suggests that this may have influenced the complaints. Ms Bolland rejects the notion of any such earlier exchange or relationship between them.

[97] Ms Feltus gave evidence that a PSAs’ duties on a Right of Way train involve at each station; checking that all passengers have alighted safely, checking the signals are clear and then “buzzing” the driver to indicate that it is safe to proceed. Ms Feltus’ evidence was that Ms Rombola was ordinarily loudly spoken, but in this instance spoke louder than normal and was loud enough for Ms Bolland to overhear. According to Ms Feltus, the statements as alleged by Ms Bolland (or words to that effect) were made when Ms Rombola was looking directly at Ms Bolland. Ms Feltus also gave evidence that she believed she and Ms Rombola stayed together while checking the carriages at the end of the trip and preparing the train for a Right of Way return journey. Her evidence was that she believed this to be the case as this is what the relevant procedure requires but could not recall whether this actually occurred on that day.

[98] I find that the evidence supports the substance of the allegations under ground 5. I find that Ms Rombola did let her presence be known to Ms Bolland and the applicant did so with a view to letting Ms Bolland know that she was being watched, and was aware that a complaint against her had been made by Ms Bolland. This was an attempt to intimidate Ms Bolland. There was no legitimate reason to have Ms Bolland under surveillance and this conduct occurred over an extended period. The conduct was not appropriate behaviour for a PSA, and was an abuse of her position.

[99] I do not accept that Ms Bolland had any relevant personal history with Ms Rombola that would provide a motive for Ms Bolland to create issues for her as contended by the applicant. Indeed, the attempt by Ms Rombola to suggest this as part of the investigation was misleading.

[100] Whilst it is likely that Ms Rombola (and Ms Feltus) may have checked the platform after the conclusion of the outwards journey, based upon the evidence, I cannot be satisfied that Ms Rombola ventured to the edge of the car park after the trip in order to locate Ms Bolland or to identify her vehicle. This was not observed by Ms Feltus who indicated that it is likely that she and Ms Rombola were together following the conclusion of the trip and preparing for the return journey and Ms Bolland’s evidence in relation to the detail of this aspect was less convincing.

Other matters now relied upon

[101] I find that the exchange between Ms Rombola and Ms Hage in the cake supply store took place largely as contended by Ms Hage. This involved Ms Rombola, who was under the (mistaken) impression that Ms Hage had provided a statement adverse to her interests, making aggressive and inappropriate comments towards Ms Hage based upon that impression. This is sufficiently connected to the workplace to be relevant in this matter, given the direct link to the workplace investigation and the broader context for the exchange. 10

[102] Based upon the evidence, whilst I accept that it is possible that Ms Rombola and her partner were outside of Ms Quinn’s house on motorcycles on the first occasion, and that this is the honest belief of Ms Quinn, it is not reasonable for the Commission to make such a finding based upon the absence of objective evidence about these matters. I have reached this conclusion because the identification by Ms Quinn relies upon the colour of the motorcycles and helmets and this was public knowledge (through social media posts about the applicant’s motorcycle and other sources) and the lack of precision associated with that identification. Further, I reject the second allegation as there is clear objective evidence that Ms Rombola and Mr Branwhite were many miles away at the time. It is likely that Ms Quinn’s concerns about Ms Rombola, given the personal enmity between her partner and the applicant, have influenced Ms Quinn to the point where she will assume the worst motives and conduct by Ms Rombola. In any event, I note that although they are both employees of the Rail Commissioner, this conduct, if it occurred, would have largely been a personal issue with a relatively remote connection to the workplace – at least for present purposes – given the alleged conduct, the context and location.

5. The discipline procedure and other policies

[103] I deal firstly with the Discipline Procedure itself. That procedure is applicable to the Rail Commissioner’s operations and sets out the process by which disciplinary action is to be undertaken. In general terms, it contemplates a graduated approach to such matters. Depending upon the nature of the allegations, the procedure contemplates a preliminary investigation, a decision about whether a full investigation is to be conducted – with associated obligations to advise the employee and provide them with an opportunity to be heard on the allegations, an investigation interview(s) and a series of graduated disciplinary actions including up to dismissal. In addition, the procedure contemplates a dismissal interview, should that eventuate in any given case.

[104] The Discipline Procedure contains the following definitions of relevance to this matter:

“Condoning misconduct is where the misconduct is known about by relevant management but has not been acted upon within reasonable timeframes. Misconduct which has been condoned cannot normally become the basis for subsequent disciplinary action.

Delegate is the manager who undertakes the investigation, determines whether or not the employee is liable to disciplinary action, and determines the appropriate disciplinary action (i.e. the decision maker). The nomination of a delegate must be in accordance with the Division’s Delegations and Authorisations.

Misconduct is when an employee breaches their obligations under their contract of employment or employment relationship.

Reasonable as applied in relation to timeframes means not excessive or extreme given the relevant circumstances and within the bounds of general industrial practice.” 11

[105] The various responsibilities under the Discipline Procedure are set out in clause 4 as follows:

“RESPONSIBILITIES
General Manager
The General Manager is responsible to take all reasonable steps to ensure that all allegations of misconduct or continued under-performance are dealt with promptly and in accordance with these procedures.

Delegate
The Delegate is responsible for undertaking the investigation interview/s, determining whether or not the employee is liable to disciplinary action (i.e. the matter will be both heard and determined by the one person). It is not appropriate for one person to hear the inquiry and another to make the determination of liability to disciplinary action or imposition of a penalty.
Therefore, in accordance with the Division’s Delegations and Authorisations, in matters where termination is within the range of possible disciplinary outcomes, the Delegate must be an Executive Manager.
The preliminary investigation can be conducted by any manager.

Managers/Supervisors
Managers and supervisors are responsible for ensuring that employees under their directions and control are aware of and understand the organisation’s published Policies, Practices and Standards.
They are also responsible for identifying and managing misconduct in accordance with the Division’s Counselling and Discipline Policy and this Procedure.

Employees
Employees are required to conduct themselves in a professional manner that brings credit upon the organisation and themselves.

Human Resources
Human Resources is responsible for providing support to managers in the disciplinary process, and advise on organisational procedural and legal obligations.” 12

[106] Without detailing all of the provisions concerning the investigation process, the preliminary investigation process is described in the following terms:

“7.1 Preliminary investigation
As soon as an incident comes to notice, the manager must take action to ascertain whether a policy or instruction may have been breached, the seriousness of the alleged breach and the employee involved. At this stage it must be determined whether a full investigation is necessary.
As a guide, a preliminary investigation should be completed within 14 calendar days from when the incident comes to notice.” 13

[107] The section of the Discipline Procedure which deals directly with the suspension of employees is set out in sub-clause 7.2.1 as follows:

“7.2.1 Direction not to attend for duty until further notice

Directing an employee to not attend for duty until further notice is an option when there is an allegation of serious misconduct against an employee. Such direction must be considered at the start of the investigation procedure.

During the period under such direction, the employee is not entitled to attend and carry out his or her work, but will in the meantime continue to be paid as usual pending the final outcome of an investigation into the matter.

Direction not to attend for duty must only be considered in extreme circumstances. It is essential to conduct an investigation as expeditiously as possible in all cases. The decision to direct an employee not to attend for duty until further notice must only be made by an Executive Manager. If such direction is going to be given it must occur as soon as possible after the alleged misconduct has been committed.

Direction not to attend for duty is appropriate where:

• The employee’s continued presence poses occupational health and safety risk;



• The employee’s continued presence is likely to have a substantial impact on the operations of the business unit;



• Allowing the employee to continue to work during an investigation is likely to result in general hostility within the workplace;



• The employee’s continued presence is liable to impact upon the public confidence or is not in the best interests of the public;



• It is seen to be in the best interests of the employee concerned (i.e. cooling-off period) or fellow employees (removal of the employee from the workplace if animosity exists);



• It facilitates a thorough and complete investigation of the allegations; or



• If the employee’s continued presence may jeopardise the investigation.” 14

[108] The role of warnings in clause 9.1 is based upon four principles being: clear expectations, immediacy, consistency and impartiality. In terms of immediacy, the Discipline Procedure states as follows:

“9.1.2 Immediacy
The manager must initiate the appropriate disciplinary action, as soon as possible after misconduct comes to notice and has been investigated, or poor performance has been identified.
The Rail Commissioner may be seen to condone misconduct/continued poor performance if no action is taken against the employee within a reasonable period of time. Under the principles of procedural fairness, action cannot be taken if an unreasonably long period of time has elapsed since an incident of misconduct was reported.

• manager must therefore inform the employee involved that:

● the alleged misconduct/continued poor performance has been noted;
● it is being further investigated to ensure that a proper decision is taken; and
● he or she will be notified of any action at the earliest possible opportunity.” 15

[109] In relation to termination of employment, the Discipline Procedure provides both a checklist to be followed and observations as to when dismissal may be warranted.

[110] The procedure states as follows in relation to disciplinary action:

“8.2 Demonstrating good cause

The Rail Commissioner must be able to demonstrate sufficient reason for the disciplinary action to be taken. In determining good cause, one must consider what a ‘reasonable employer’ would do given the circumstances of the particular case at hand. As such, the examples provided in this procedure should serve as a guide only in determining the appropriate disciplinary action.

In addition to the seriousness of the particular behaviour/misconduct, a reasonable employer would consider the following factors in determining the appropriate disciplinary action:

● previous warnings;
● how other employees have been treated in similar circumstances;
● the employees length and record of service;
● the employees position;
● the employee’s personal circumstances
● the nature of the employment and employment duties;
● the custom and practice in the workplace and Rail Commissioner as a whole;
● the type of workplace’
● (in special circumstances) the likelihood of the employee gaining alternative employment; and
● mitigating circumstances.” 16

[111] In relation to termination without notice, the Discipline Procedure states:

“10.2 Summary dismissal
An employee may be summarily (instantly) dismissed for serious misconduct, and as a consequence forgoes the period of notice (or payment in lieu).
In determining whether good cause exists for summary dismissal, each case must be considered on its merits. Summary dismissal is justified when an employee’s misconduct has been of such a serious nature that it results in a rejection of his or her obligations under the contract of employment. When an employee’s behaviour is being assessed for misconduct, consideration must be given to whether the employee was aware of the obligations he or she is alleged to have breached. If the employee is aware of an obligation and has chosen to breach it, this is considered a repudiation of the contract of employment.” 17

[112] In relation to “summary dismissal”, the Discipline Procedure also provides as follows:

“10.2.1 Behaviour which may justify summary dismissal
Decisions of the Industrial Tribunals in previous unfair dismissal cases provide a useful guide in determining when summary dismissal for serious misconduct is justified. Examples of serious misconduct which have, under certain circumstances, led to summary dismissals are listed below. These are examples only, and not all such conduct will warrant dismissal, as each case must be considered on its merits.

• Fighting on the job;



• Assault on a member of the public, supervisor or member of the work group;



• Threatening behaviour towards other employees;



• Abuse designed to undermine the authority of the supervisor;



• Refusal to obey a lawful and reasonable direction for reasons other than those arising:



• In the course of an industrial dispute;



• From occupational health and safety considerations; and



• From religious or conscientious beliefs;



• Theft of Rail Commissioner or Government property;



• Disclosure of confidential information obtained in the course of employment other than when the employee is required to divulge that information by law or is authorised to do so by the Rail Commissioner;



• A serious breach of safe working rules;



• Obscenity;



• Sexual harassment; and



• Serious dishonesty.” 18

[113] More generally, the Discipline Procedure provides as follows:

“10 FORMAL DISCIPLINARY ACTION: TERMINATION

Termination is the most severe form of discipline available to the Rail Commissioner. Particular care must be taken when handling such cases. The following checklist must be satisfied prior to dismissal.

Checklist:

● A full investigation into the employee’s misconduct or performance has been undertaken (refer section 6 – Discipline Procedure);
● The principled of procedural fairness have been observed (refer to Counselling and Disciplinary Policy – Procedural Fairness);
● Good cause for dismissal has been established (refer Section 8 – Determining Appropriate Disciplinary Action);
● The final decision to dismiss an employee has been undertaken by the Delegate (i.e. Executive Manager) after consultation with Human Resources and the General Manager (or other Executive Manager in the General Manager’s absence).

… …

10.1 Termination with notice
Termination with notice is usually appropriate when an employee has already received a final written warning and either there is repeated misconduct, or the employee’s performance continues to be poor.

An employee will be terminated with notice following an investigation into the final incident of misconduct, or a final assessment of the employee’s performance.

… …” 19

[114] I also note that there are flow charts attached to the Discipline Procedure illustrating the general approach to be adopted. The thrust of the relevant flow chart is that if there are no prior warnings, dismissal would not normally be appropriate except in the case of serious misconduct. It is evident, however, that this must be read in conjunction with the detail of the procedure itself.

[115] The following arises from the Discipline Procedure when applied to the facts of this case:

● From the time that Ms Bransden made her complaint against Ms Rombola, the Rail Commissioner followed a process broadly consistent with the Discipline Procedure;
● The suspension followed the preliminary investigation as required by the Discipline Procedure and appears to have been based upon considerations consistent with that procedure;
● The preliminary investigation was followed by a full investigation and although that necessitated multiple interviews, both proceeded very slowly; and
● A number of the individual allegations concerning Mr Rombola’s conduct towards Ms Bransden considered by the Rail Commissioner in the investigation were known to Supervisors and Coordinators at the time and not acted upon. This includes that the Supervisors did not notify Managers about the conduct and it is these Managers that had the formal powers under the Discipline Procedure to initiate disciplinary action against Ms Rombola. However, the Supervisors also had a role under the Discipline Procedure to identify and manage any misconduct. Some limited elements of the allegations were reported to relevant Managers and not acted upon at that time. The entire pattern of conduct in relation to Ms Bransden was not known by management until the complaint was made in January 2015.

[116] In these circumstances, although the procedure may not prevent these events being relied upon in this matter, the Discipline Procedure itself recognises that under that procedure, procedural fairness requirements may mean that it is not reasonable to rely upon misconduct where an unreasonably long period of time has elapsed since an incident of misconduct “comes to notice”.

[117] It is also reasonably clear that the Discipline Procedure contemplates that dismissal in cases where there has been no prior warnings, including dismissal without notice, is only appropriate where there has been misconduct of some significance.

[118] The Rail Commissioner also relied upon the Code of Ethics (the Code). The Code applies to employees in the South Australian public service more generally, and includes employees of the Rail Commissioner.

[119] Amongst other matters, the Code emphasises the need for all employees to act with respect and courtesy in their dealings with the public and other employees.

[120] The Rail Commissioner, as part of DPTI, has also established various policies concerning the prevention and response to workplace bullying, discrimination, harassment and victimisation. These polices define bullying and other inappropriate conduct and refer to the responsibilities of employees and managers in that context.

[121] I am satisfied the Code and Workplace Bullying and related policies are lawful and reasonable and relevant to this matter. I find that the Rail Commissioner took appropriate steps to advise Ms Rombola and other employees about their contents and associated requirements. Those steps included induction sessions, specific training activities, prompted access to relevant polices associated with computer access, and discussions arising from some mediation sessions involving Ms Rombola and others.

6. Was Ms Rombola’s dismissal unfair within the meaning of the FW Act?

[122] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”

[123] Ms Rombola was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[124] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[125] The FW Act relevantly provides as follows:

“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(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.”

[126] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[127] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Ms Rombola’s capacity or conduct (including its effect on the safety and welfare of other employees)

[128] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.²⁰

[129] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.²¹ It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.²² Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.²³ This includes the conduct associated with the incident in the cake supply shop with Ms Hage.

[130] In Woolworths Limited (t/as Safeway) v Cameron Brown²⁴ a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,²⁵ considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:

“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(b) the policy, or a direction to comply with the policy, is unreasonable.”²⁶

[131] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,²⁷ Deegan C determined that:

“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.” ²⁸

[132] Although also dealing with considerations beyond the existence of a valid reason, in Bostik (Australia) Pty Ltd v Gorgevski (No 1)²⁹ the Court observed:

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”³⁰

[133] I have found that the relevant policies of the Rail Commissioner dealing with conduct in the workplace were lawful and reasonable.

[134] I consider that some of the conduct of Ms Rombola as found by the Commission was deliberate and inappropriate and was misconduct. This includes the conduct in relation to Ms Bransden, and that associated with the complaints made by Ms Bolland and Ms Hage, to the extent that I have found that such occurred. The conduct as found by the Commission was not consistent with the relevant policies and the reasonable expectations within the workplace. I also find that there was a pattern of conduct which undermined the necessary trust and confidence in the workplace and significantly impacted upon working relationships with management and with other employees. The absence of genuine recognition of the inappropriateness of that behaviour or any contrition compounds the seriousness of the conduct.

[135] I will return to the issues associated with the delay in acting upon some of the issues associated with Ms Bransden and the totality of the conduct as part of my further consideration of this matter.

[136] I find that there was a valid reason for Ms Rombola’s dismissal.

Section 387(b) – whether Ms Rombola was notified of the valid reason

[137] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.³¹

[138] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[139] I consider that in general terms the process of putting the allegations to Ms Rombola and the interviews that followed mean that she was notified of the relevant reasons as contemplated by this consideration. There was more detail in relation to allegation 2 than was put to Ms Rombola during the investigation. Indeed, based upon the evidence before the Commission I have found more extensive conduct than relied upon by the Rail Commissioner in reaching the decision to dismiss Ms Rombola. However, the written allegations made as part of the investigation were broadly consistent with the alleged misconduct found as part of the valid reason. Given Ms Rombola’s blanket denials and lack of recall, it is not clear to me that any deficiency in this regard has led to unfairness.

[140] The conduct in relation to Ms Hage was not known by the Delegate at the time of the dismissal and accordingly not put to Ms Rombola and not taken into account at that time.

Section 387(c) – whether Ms Rombola was given an opportunity to respond to any reason related to her capacity or conduct

[141] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[142] This process contemplated by the FW Act does not require any particular formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Ms Rombola was aware of the nature of the employer’s concern about his conduct and had a full opportunity to respond to these concerns.³²

[143] Subject to the caveats discussed above, I am satisfied that this was done in this case.

Section 387(d) – any unreasonable refusal by the respondent to allow Ms Rombola a support person

[144] Ms Rombola was accompanied by a support person during the discussions leading to the decision to terminate her employment.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Ms Rombola– whether she has been warned about that unsatisfactory performance before the dismissal

[145] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.³³

[146] This consideration does not directly arise in this matter.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

Section 387(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

[147] I deal with these considerations together. The Rail Commissioner is a large employer and has dedicated Human Resources expertise.

Section 387(h) - other matters considered to be relevant

[148] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission.³⁴

[149] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed.³⁵

[150] Ms Rombola was employed for approximately four years. Of this, Ms Rombola was suspended on pay for the last 12 months. I also note that she had for a decade earlier worked for a contractor providing service to what is now the Rail Commissioner.

[151] The decision to dismiss Ms Rombola has had an impact upon her including that she has been unable to proceed with training that was intended to allow her to start a new career with another State Government agency. In that regard, I note that Ms Rombola had at the time of the dismissal, already paid for some course costs to enable that training to be undertaken.

[152] I have earlier considered factors associated with the delay in dealing with some of the allegations, particularly those arising from the complaint made by Ms Bransden. Whilst that complaint, when made, was dealt with in accordance with the Disciplinary Procedure, it and the subsequent investigation involved conduct that generally took place some time earlier. Some of that individual conduct was known, or involved some Supervisors, and at least one allegation was reported to a Manager with the authority to undertake disciplinary action.

[153] At least in relation to reliance upon “condoned” misconduct for the purposes of justifying dismissal without notice, it is reasonably clear that such is problematic. However, as acknowledged in the cases 36 relied upon by Mr Diamond for the applicant, those authorities do not stand for the proposition that misconduct that is not acted upon becomes irrelevant more generally. For example, in McCasker v Darling Downs Co-operative Bacon Association Ltd, Ryan J, citing an earlier authority, stated as follows:

“… …

I doubt whether this particular act by Mr Krimmer amounted to waiver or condonation of the plaintiff’s disobedience to the direction which had been given to him some months earlier. Nevertheless I consider that the fact that Mr Krimmer continued the plaintiff in his employment after his class act of disobedience had the effect that he was unable subsequently to dismiss him solely on the ground of this act of disobedience. It remained however as something which together with other subsequent matters might constitute a good ground for summary dismissal. I adopt with respect the remarks of Sheppard J in John Lysaght (Australia) Ltd v Federated Iron Workers’ Association; Re York (1972) AILR 517 where he said:

“It is no doubt possible for the company to waive particular acts of misconduct that would otherwise have justified dismissal without notice. These particular acts could not subsequently be used for this purpose once the decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man’s service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighted in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal.” 37

[154] I would add in this regard that reliance on potentially condoned behaviour would in most cases be a consideration to be weighed in assessing the overall fairness of a dismissal. I have adopted that approach in this matter.

[155] Although the Discipline Procedure is written in general terms and, for reasons outlined earlier, cannot bind the Commission, it is also relevant to the consideration of Ms Rombola’s dismissal in the present context. The procedure recognises that it may not be reasonable or fair to rely upon misconduct that was notified but not acted upon within a reasonable time period. This approach is arguably an additional constraint when considered in light of the concepts arising from the common law that has informed the authorities discussed above.

[156] This approach is reinforced by the principles within the Discipline Procedure which emphasise fairness, proper investigation and “immediacy”. The time taken to finalise some of the steps in the procedure might also stretch the notion of that immediacy.

[157] Whether or not some of the individual conduct associated with Ms Bransden was “condoned” within the meaning of the Discipline Procedure, the fact that some of this behaviour was known by Supervisors and Shift Coordinators but not acted upon or escalated at the time, is in any event a relevant consideration in this matter. It is indicative of a culture, which the Rail Commissioner may now be attempting to change, but was in place when some of the misconduct took place.

[158] The absence of earlier warnings about these or any associated matters is also relevant in that context. I note that Ms Rombola and others had been reminded of the obligations to avoid bullying conduct as part of the mediation process conducted by Mr Caruso in light of allegations made against the applicant by Ms Horvat. This was not, however, a warning or disciplinary action. All of this must also be weighed against the nature and extent of the misconduct as I have found it to be.

[159] The Discipline Procedure, where there have been no prior warnings, contemplates dismissal in circumstances where there is serious misconduct. The procedure does not define “serious misconduct”; however, it does outline the range of conduct that might justify dismissal without notice. These have been set out earlier in this decision and are conceptually consistent with the definition of serious misconduct as set out in Regulation 1.07 of the Fair Work Regulations 2013. I note that these regulations define the circumstances under which notice, or pay in lieu of notice, required by s.117 and s.123(1)(b) of the FW Act, may not be required.

[160] In this case, Mr Rombola was dismissed with payment in lieu of notice. However, at least to the extent that compliance with the Discipline Procedure is concerned, the circumstances contemplated for summary dismissal are of some guidance due to the procedure’s reliance upon serious misconduct where a dismissal is contemplated in the absence of earlier warnings.

[161] Without detracting from the detailed findings outlined earlier, I have found the following misconduct:

● Ms Rombola’s conduct in relation to Ms Bransden was disrespectful, rude and objectively unreasonable and this took place between July 2013 and April 2015;
● Ms Rombola failed to comply with a reasonable and lawful management direction in October 2013 and this also involved some related unreasonable conduct directly in relation to Ms Bransden;
● Ms Rombola used a mobile phone whilst on duty on 15 June 2015 in a manner that was beyond the reasonable use of a phone whilst working, was observed by a number of passengers and represented conduct which was not appropriate;
● Ms Rombola acted inappropriately towards Ms Bolland and abused her position as a PSA on 6 July 2015 in attempting to intimidate the passenger in the context of the earlier complaint and also attempted to mislead the Rail Commissioner about Ms Bolland’s motive; and
● Ms Rombola, who was under the (mistaken) impression that Ms Hage had provided a statement adverse to her interests, making aggressive and inappropriate comments towards Ms Hage based upon that impression in the cake supply store on 8 June 2016.

[162] Some of that conduct is of differing seriousness and consequence and would, if considered in isolation, be grounds for a warning rather than dismissal particularly given the timeframes and delay involved. In addition, some of the misconduct has previously not been acted upon, including by some of the Supervisors and Shift Coordinators. However, it is the entire context, including the full extent of relevant misconduct and mitigating and other circumstances, which must be considered in this matter.

7. Conclusions on the dismissal

[163] I have carefully weighed all of the factors and circumstances of this application.

[164] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,³⁸ the Full Bench observed:

“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[165] I have found a valid reason for dismissal. There are no significant concerns about the procedure leading to the dismissal and there are competing considerations as to whether the dismissal was harsh and unreasonable given the context in which some of the misconduct occurred.

[166] These considerations include the fact that some of the misconduct took place at a time where that conduct was not escalated by the Supervisors to more senior management or dealt with in the few instances where this occurred. This extends to what I consider to be amongst the more serious conduct as it concerned Ms Bransden and the instruction given by Mr Langford.

[167] The application of the Discipline Procedure to these circumstances is also a relevant but not determinative consideration. I can foresee circumstances where it would be unreasonable to rely upon conduct in circumstances where a relevant policy expressly stated that some conduct would not be relied upon. In this case, the Discipline Procedure is not that explicit and in my view the exclusion of the earlier misconduct from consideration in this case would be a case of form triumphing over substance.

[168] Further, those matters raised for the first time following Ms Bransden’s bullying complaint (which also involved a more complete understanding of the pattern of conduct) and the conduct in relation to Ms Bolland and Ms Hage, do not raise any concerns about the application of the Discipline Procedure and there are, in general terms, no significant mitigating circumstances in relation to those matters. Of these, the findings of the abuse of Ms Rombola’s position as a PSA arising from her conduct on 6 July 2015 is particularly significant as part of the totality of the misconduct, given the nature of that position and the functions of the Rail Commissioner.

[169] The impact of the dismissal upon Ms Rombola and the payment in lieu of notice are also relevant considerations.

[170] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position.³⁹ The Commission is also directed to ensure a “fair go all round”. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:

“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

[171] On balance, having regard to the provisions of s.387 of the FW Act as applied to the totality of my findings in this case, I am not persuaded that Mr Rombola’s dismissal was harsh, unjust or unreasonable. The dismissal was not therefore unfair within the meaning of the FW Act.

[172] As a result, the application must be dismissed and an order⁴⁰ to that end is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

M Diamond of the Australian Rail, Tram and Bus Industry Union for Ms Rombola.

S Bakewell, of EMA Consulting, with permission for the Rail Commissioner.

Hearing details:

2016

Adelaide:

28, 29 and 30 November

1 December.

1 (1938) 60 CLR 336.

2 (2007) 166 IR 407 at [14] - [16].

 3   The evidence of Mr Galston, Mr Caruso and Mr Langford.

 4   Attachment PG4 to the Statement of Mr Gelston.

 5   Attachment PG7 to the Statement of Mr Gelston.

 6   Attachment PG10 to the Statement of Mr Gelston.

 7   Attachment PG12 to the Statement of Mr Gelston.

 8   Transcript PN705.

 9   Transcript PN172.

 10   See: Kedwell v Coal & Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining [2016] FWC 6018, citing Applicant v Respondent (1999) 89 IR 407 at 416 and Rose v Telstra Corporation Ltd AIRC Print Q9292 (4 December 1998) per Ross VP. The potential relevance of this conduct was accepted by Ms Diamond – transcript PN3391.

 11   Attachment PG9 to the Statement of Mr Gelston.

 12   Ibid.

 13   Ibid.

 14   Ibid.

 15   Ibid.

 16   Ibid.

 17   Ibid.

 18   Ibid.

 19   Ibid.

20 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

21 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

22 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

23 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C, at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

24 PR963023 (26 September 2005) (footnotes omitted).

25 PR928970 (19 March 2003) at [14].

26 PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [48], [65] and [67].

27 [2009] AIRC 893 (16 October 2009).

28 Ibid at [54].

29 (1992) 41 IR 452 per Sheppard and Heerey JJ.

30 Ibid at p 460.

31 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

32 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

33 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

34 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

35 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 36   Wong v Taitung Australia Pty Ltd [2016] FWC 7982 and McCasker v Darling Downs Co-operative Bacon Association Ltd per Ryan J 25 IR 107. See also Rowland and Rollason v Austar Coal Mine Pty Limited [2010] FWA 8011.

 37   McCasker v Darling Downs Co-operative Bacon Association Ltd per Ryan J 25 IR 107

38 [2011] FWAFB 1166.

39 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132 FCR 147 at [13].

40 PR589746.

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