[2019] FWC 1182
The attached document replaces the document previously issued with the above code on 22 February 2019.
The Respondent’s name was incorrectly identified as “Transport for NSW T/A Transport for NSW.” The Respondent’s name has been corrected to be “Sydney Trains.”
Associate to Deputy President Bull
Dated 4 March 2019
| [2019] FWC 1182 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rodney Fussell
v
Sydney Trains
(U2018/9098)
DEPUTY PRESIDENT BULL |
SYDNEY, 22 FEBRUARY 2019 |
Application for an unfair dismissal remedy, allegation of serious misconduct. Forwarding of offensive image on Snapchat to fellow employee out of hours. Whether deliberate or careless action, whether conduct employment related.
[1] Mr Rodney Fussell (the applicant) commenced work with Sydney Trains in September 2010, and was dismissed from his employment by Sydney Trains on 15 August 2018.
[2] Both parties were granted permission to be represented by counsel as per s.596(2)(a) of the Fair Work Act 2009 (the Act).
[3] Mr Fussell was previously employed as a Train Guard with Sydney Trains. In his unfair dismissal application, Mr Fussell seeks reinstatement to this position.
[4] On Sunday evening 25 February 2018, Mr Fussell forwarded on his personal mobile phone an image of his erect penis (offending image) via the multimedia messaging app Snapchat to a work colleague and fellow Train Guard Ms Kendall Abbott. Snapchat is used to share photos, videos, text and drawings. Photographs on Snapchat can be viewed for a user-specified length of time (1 to 10 seconds as determined by the sender) before they become inaccessible. 1 A screenshot of the offending image and some accompanying text taken within this timeframe by Ms Abbott was tendered in evidence by Sydney Trains.
[5] The receipt of the offending image upset Ms Abbott to the extent that she sent a message to a number of Sydney Trains employees 2 expressing her disgust at Mr Fussell’s conduct. Ms Abbott’s message was shown to Mr Matthew Quinn Crew Manager Cronulla/Waterfall depots by Mr Alan Stewart, the respondent’s Shift Manager Train Crew Waterfall. Mr Quinn reported the matter to the Deputy Executive Director Train Crew Samantha Abeydeera. Subsequently, Mr Quinn contacted the Workplace Conduct and Investigation Unit (Investigation Unit) who commenced an investigation (the Investigation) into Mr Fussell’s conduct.
[6] Following the Investigation, in which Mr Fussell participated; Mr Fussell was advised in correspondence of 14 May 2018 that Sydney Trains’ preliminary view was that he should be dismissed from his employment and that he had 10 days in which to provide any submissions on the proposed outcome. 3 Mr Fussell was advised that he was not required to attend work until either his employment was terminated or a request for a review was submitted and accepted, and the outcome communicated to him. A response from Mr Fussell was provided on 1 June4 2018, which contended that the decision to terminate his employment should not occur with a lesser penalty of reprimand or short suspension applying.
[7] On 4 July 2018, Sydney Trains advised Mr Fussell that having considered his response to Sydney Trains’ preliminary view, the outcome was still that of dismissal and that under the Interim Discipline Penalty Review Process Guidelines put in place by Transport for NSW he could request a review of the decision by the Transport for NSW Disciplinary Panel within 10 working days. Mr Fussell was again advised that he was not required to attend work until his employment was terminated or if a review was requested and accepted and the outcome communicated to him.
[8] Mr Fussell subsequently lodged a Notice of Disciplinary Panel Review which was unsuccessful and his employment ended on 15 August 2018.
Evidence of Mr Fussell
[9] Mr Fussell provided a witness statement, 5 gave oral evidence, and was subject to cross examination.
[10] Mr Fussell commenced as a Train Guard in September 2010 and stated that during his employment with Sydney Trains he had not been subject to any poor performance or misconduct issues. Prior to his dismissal he was completing training to be employed in the position of Trainer Guard working from the Waterfall Depot.
[11] Mr Fussell readily conceded that he sent the offending image to Ms Abbott on Sunday 25 February 2018 while conversing with her on social media outside working hours from his personal mobile phone.
[12] Mr Fussell’s evidence was that sending the offending image occurred accidentally and that he took full responsibility. He expressed his remorse at what had occurred and stated that he had immediately apologised to Ms Abbott.
[13] On 15 March 2018, Mr Fussell received correspondence from a Grant Marley, Investigation Services Manager of the Workplace Conduct and Investigations Unit - People and Culture - People and Corporate Services - Transport for NSW. The correspondence referred to Mr Fussell’s sending of the offending image and that the Investigation Unit had commenced a disciplinary investigation into the possibility that he had breached the:
• Code of Conduct
• Transport Prevention and Management of Bullying and Harassment Policy and the
• Use of Social Media Policy.
[14] Mr Fussell was provided with the opportunity to provide a written response within 14 days and was interviewed by Mark Barraclough, a Consultant with the Investigation Unit. Mr Fussell provided his written response on 27 March 2018 which referred to his accidental sending of the offending image, regret and embarrassment. He stated that he was aware of Sydney Trains’ Code of Conduct and the Use of Social Media Policy which he supported.
[15] In explaining the circumstances that led to the sending of the offending image Mr Fussell’s written explanation stated that he had known Ms Abbott since 2012 and that they had been friends and colleagues since then, and were friends on various social media platforms.
[16] Mr Fussell stated that he started using the social media platform Snapchat in February 2018 and his inexperience with the App directly contributed to the incident. On 25 February 2018, he was using his mobile phone and messaging Ms Abbott. Mr Fussell stated that he was selecting several personal photos of a recent arm tattoo which covered over a picture of his ex-wife 6 and inadvertently selected and forwarded the offending image. Mr Fussell stated that it was an honest mistake and that the image could not be recalled through the Snapchat App. He stated that he had apologised to Ms Abbott and understood that she would be offended by receipt of the image.
[17] Mr Fussell advised Sydney Trains in his written response that in the last 6 months he had had major back surgery and that his 17 year marriage had ended and access to his children had been extremely limited causing extreme stress, emotionally, mentally and physically. Mr Fussell stated he was available to be interviewed.
[18] On 6 April 2018, Mr Fussell was interviewed by Mr Barraclough and a copy of the record of interview was provided to him.
[19] When a number of assertions that Ms Abbott had stated in her evidence to the Investigation were put to Mr Fussell in cross examination, his response was that he could not recall having made them. These conversations related to whether he had said he was drinking that day and whether Ms Abbott had messaged him stating ‘do not send me an image of your dick’.
[20] On 14 May 2018, he was advised in writing by Ms Abeydeera, the Deputy Executive Director Train Crewing Illawarra & South, that the outcome of the Disciplinary Investigation was that Sydney Trains were of the view that he should be dismissed. Mr Fussell took the opportunity to respond to the proposed outcome in correspondence sent to Sydney Trains on 1 June 2018, through his solicitors.
[21] Mr Fussell’s response referred to his previous sincere apologies to Ms Abbott, his expression of remorse to the employer and his immediate steps to rescind the image once he realised it had been transmitted, which unfortunately the App did not allow. Mr Fussell reiterated that the transmission of the offending image was unintentional and accidental.
[22] Mr Fussell’s response inserted an extract from a letter from Mr Fussell’s new partner which explained the context in which the offending image came into existence. Mr Fussell’s new partner stated that they had developed a highly visual relationship and often shared images of a personal and private nature.
[23] Mr Fussell’s response concluded that his dismissal was manifestly harsh and not commensurate with an isolated incident considering his previous good work history. It was further put in Mr Fussell’s response that it was highly unlikely that he would repeat the misconduct should he be reinstated and that a lesser penalty of reprimand or short suspension should apply.
[24] Sydney Trains responded to Mr Fussell on 4 July 2018 in correspondence signed by Ms Abeydeera stating that Mr Fussell’s response had been considered and that Sydney Trains were satisfied that he had engaged in action that breached the Code of Conduct and its final view was that his conduct warranted dismissal.
[25] Utilising his right to request a review pursuant to the Interim Discipline Penalty Review Process Guidelines put in place by Transport for NSW, Mr Fussell sought a review on 13 July 2018. Mr Fussell’s review application stated that the weight of the evidence clearly established that he did not intend to harass or bully Ms Abbott. The conduct was the result of an error which he admitted and had apologised for. It was put that his dismissal as a result of a single incident was harsh and a lesser penalty should be considered.
[26] The review application also stated that Ms Abeydeera’s correspondence of 4 July 2018 failed to state what consideration had been given to his submissions other than the bare assertion that they had been considered.
[27] On 15 August 2018, Mr Fussell received correspondence signed by Kathryn Freytag Secretariat - Transport for NSW Disciplinary Panel. The correspondence advised that the Disciplinary Panel had given consideration to his submissions, in particular:
• Assertions he did not intend to send the explicit image of himself to a work colleague;
• Concerns that the disciplinary decision is harsh, unreasonable and unjust, including his assertions that the Sydney Trains decision-maker did not properly take into account his response to the proposed disciplinary penalty and should have better explained their reasoning for rejecting his response; and
• Personal circumstances including the medical treatment he had been receiving.
[28] The correspondence went on to state that in arriving at its decision the Disciplinary Panel noted that as a Guard Trainer he was expected to lead by example and demonstrate ethical conduct at all times. His behaviour, involving sending a sexually explicit photograph of himself to a work colleague, represented a serious breach of trust.
[29] The correspondence stated that the Disciplinary Panel did not accept Mr Fussell’s explanation that he did not intend to send the image and noted his lack of contrition in respect of the behaviour he was found to have engaged in and his refusal to accept responsibility for his actions.
[30] The letter concluded that the Disciplinary Panel did not consider that his dismissal was harsh or unreasonable and upheld the decision of Sydney Trains to terminate his employment.
[31] Mr Fussell submitted that the Disciplinary Panel’s conclusion that he showed a lack of contrition and refused to accept responsibility for his actions was erroneous. Mr Fussell stated that during the Investigation process it was never put to him that he had answered any question dishonestly or was not contrite.
[32] In giving his oral evidence, Mr Fussell explained how he came to erroneously select the offending image and mistakenly forward it to Ms Abbott. In summary, this was due to his lack of familiarity with the App, although he could not recall how close the image that he had intended to send (a recent arm tattoo) was to the offending image on his phone.
[33] Mr Fussell provided a number of written references from various Sydney Trains employees attesting to his good work performance and character.
Mr Fussell’s submissions
[34] It was put on behalf of Mr Fussell by his counsel that his dismissal was unfair due to a number of reasons. The event that led to his dismissal was not denied but was a one-off accidental event for which Mr Fussell was apologetic and regretted. On realising his error he immediately sought to remedy the situation.
[35] In late 2017, Mr Fussell suffered a number of physical and mental difficulties, he had spinal surgery and his 17 year marriage ended. This led to him suffering acute anxiety/depression on and from October 2017 which has required ongoing treatment. In November 2017, he was admitted to a psychiatric hospital for a period of 2 weeks. At the time of sending the offending image he was not at work and the only fact that links the event to the workplace is that Ms Abbott is also a Train Guard employed by Sydney Trains. Mr Fussell and Ms Abbott had been friends engaging on social media from 2012 onwards. The interaction between Mr Fussell and Ms Abbott is minimal as they work at different work locations.
[36] It was put by counsel for Mr Fussell that the punishment does not fit the offence as the dismissal was disproportionate to the sending of a single explicit image to a person outside of the context of the workplace on an accidental basis, from a private mobile phone.
[37] It was further put that the process of an investigation followed by the ability to lodge a number of appeals is an unjust process where it constitutes no more than a sham process designed to create the appearance of procedural fairness.
[38] The correspondence sent by Sydney Trains to Mr Fussell on 14 May 2018 concluded that the allegation that he sent Ms Abbott a sexually explicit image via Snapchat had been substantiated and was therefore considered to be serious misconduct which breached the Code of Conduct and warranted his dismissal. The correspondence made no reference to any dishonesty on Mr Fussell’s behalf.
[39] The correspondence received by Mr Fussell on 4 July 2018 from Sydney Trains again found that it had been substantiated that he had breached the Code of Conduct and the appropriate outcome was dismissal.
[40] Both the correspondence of 14 May 2018 and 4 July 2018 rely solely on an explicit image having been sent in breach of the Code of Conduct. This was said to be in contrast to the finding made by the Transport for NSW Disciplinary Panel which referred to not accepting Mr Fussell’s explanation that he had not intended to send the image and that he had demonstrated a lack of contrition and refused to accept responsibility for his actions. None of these allegations had previously been put to Mr Fussell for him to respond to which was procedurally unfair.
[41] It was also put that no decision-maker was called by Sydney Trains to give evidence to explain why Sydney Trains had any reason to lose the trust of and confidence of Mr Fussell which the Disciplinary Panel found was a view that Sydney Trains was entitled to form.
Evidence of Ms Abbott
[42] Ms Abbott no longer works for Sydney Trains but was employed by Sydney Trains on a full-time basis as a Train Guard from the end of 2009 to July 2018, and was based at Sydney Train’s Central Depot at the time of the relevant event. Ms Abbott’s statement to the Investigation revealed she was married with two children and was on maternity leave and due to return to the workplace in December 2018.
[43] On 13 March 2018, Ms Abbott was interviewed by telephone by the Investigation Unit regarding the alleged misconduct by Mr Fussell and subsequently signed a statement dated 19 March 2018. Ms Abbott made a further statement in relation to the unfair dismissal application of Mr Fussell. 7 Ms Abbott was not required for cross examination by the applicant and did not personally attend the unfair dismissal proceedings. Ms Abbott’s unchallenged evidence was contained in her two signed statements.
[44] Ms Abbott’s evidence was that she had known Mr Fussell for approximately eight years but only in a professional capacity as he started work with Sydney Trains at approximately the same time as herself. 8 Ms Abbott had not physically seen Mr Fussell for approximately 12 months just prior to commencing maternity leave and had never met him outside work. Mr Fussell did not have her personal telephone number or email. Ms Abbott’s evidence was that she would occasionally see Mr Fussell in the meal room during break times or at the Train Crew Assignment Centre at Central Station where employees sign on and off.9
[45] Ms Abbott and Mr Fussell had been Facebook friends for a lengthy period and Ms Abbott had ascertained through Facebook and friends that Mr Fussell was going through a difficult time with personal issues. In December 2017 she messaged Mr Fussell through Facebook stating that if he ever needed a coffee, something to eat, or a place to stay he was welcome to drop by. She stated she was just being supportive and that Mr Fussell knew that she was married.
[46] Ms Abbott attached to her statement dated 13 March 2018, but signed on 19 March 2018, copies of a number of Facebook exchanges with Mr Fussell. On 17 December 2017, Ms Abbott sent the following Facebook message:
“Hey matey, I know you have already had a billion of these types of offers but here is another one anyway. You are always welcome here, for coffee or tea or dinner or breakfast, or if you ever need a bed. I’m still at Tempe and on maternity leave so home a lot if you need hangs or a cuddle. And you don’t mind screaming children. Hope you are going okay.”
[47] Mr Fussell responded in the following terms:
“Mate, that is so kind of you, I will definitely drop in for a tea and a hug.”
[48] Ms Abbott stated that she thought a Facebook message sent by Mr Fussell on 18 January 2018 was inappropriate when he messaged:
“I love kiss girls
Everywhere”
[49] This message was contained in the following extracted Facebook messages attached to Ms Abbott’s statement to the Investigation, commencing with Ms Abbott’s question:
“And how are you doing??
Up and down like a cheap hooker
Had a big cry at work this morning
Oh noooo I’m sorry to hear that dude. I’m sure it will get easier in time
Be heaps easier with a hung (sic) and kiss better
Not asking you
….
Hahaha well totally happy to hug it out with you. I’m sure it won’t be too long before you have some sexy kidding partner
I really hope so. I love kiss girls
Everywhere”
[50] Ms Abbott stated that on Saturday 24 February 2018, while she was chatting on the social media App Snapchat with a friend Mr Paul Dowler, a Sydney Trains driver and also a friend of Mr Fussell, she noticed Mr Fussell in the background of an image Mr Dowler had sent. She then asked Mr Dowler whether he was with Mr Fussell and he replied that he was. Shortly thereafter Mr Fussell added her on Snapchat as she received a notification that evening that she was now connected on Snapchat to ‘King Rod’.
[51] Ms Abbott stated that on Sunday evening, 25 February 2018 while watching television at home with her husband and two children, Mr Fussell initiated contact 10 with her via Snapchat asking how she was. Mr Fussell stated he had been drinking, was feeling drunk and then said words to the effect:
“When I am drunk I send naughty images.’
[52] Ms Abbott states that she then replied with words to the effect of:
‘do not send me a picture of your dick’
[53] Mr Fussell replied with words to the effect of:
Why? Don’t girls like dick picks because guys like to get clit picks’
[54] Mr Fussell then messaged that he had tried Viagra and was home alone and the next thing Ms Abbott knew (while she was sitting on the lounge couch with her husband and children) was that Mr Fussell had sent an image via Snapchat of his erect penis with the following message:
‘Was home alone…But before I wasn’t… Fwb’
[55] Ms Abbott stated that she understood the acronym ‘Fwb’ stood for ‘friends with benefits’.
[56] Immediately after receiving the offending image Ms Abbott received a message from Mr Fussell on Snapchat saying:
‘Shit don’t look. I’m so sorry.’
[57] Ms Abbott stated that she sent Mr Fussell a message back on Snapchat that evening to the effect of:
‘don’t f**king do that again’
and
‘what the f**k is wrong with you’
[58] Mr Fussell responded stating:
‘I’m sorry I meant to send you this one’
[59] Ms Abbott states that Mr Fussell then sent an image of his tattoo which she didn’t respond to or even look at as she was so angry and was not interested in hearing from him again. Ms Abbott stated that she did not have a record of all the Snapchat exchanges with Mr Fussell before he sent the offending image or the exchange after the offending image was sent as Snapchat images disappear after a few seconds and cannot be retrieved unless you have taken a screenshot. 11
[60] About five minutes after receiving the offending image Ms Abbott received a Facebook message from Mr Dowler and entered into a messaging conversation with Mr Dowler which she attached to her 19 March 2018 statement. In that conversation, Mr Dowler asks Ms Abbott:
“Did Rod just send you a pic of his dick?’
F**k
Yes.
Jesus Christ
Screenshot’
Screenshot? Is it that good?
Nope. It’s weird looking. But screenshot for evidence.
What a f**king grub c**t honestly
It’s very odd, he was straight on to me because he released is (sic) massive error
Yeah quite the f**king error
I definitely didn’t see that happening
I’m trying to use my words diplomatically… it’s a grand f**k up and not ok at all
Nerrrrp not OK. Like not f**king at all.
Oh I know, the guy has massive issues about knowing boundaries…. Not sure if it’s now or has been always… some of the shit that he said/did that night raised my eyebrows but this is next level or 2 extra levels
I give no f**ks about his issues. Entitled c**t.
I don’t think you should, I just find him pretty f** king random at the moment
Now hes saying ‘oh I meant to send you this pic of my cover up tattoo’
Hmmmm does that even seem plausible?
No it doesn’t. Seeing as though 2 seconds before he sent the dick pic he was telling me about the Viagra he took
Amd (sic) asking me why girls don’t like dick pics when guys love clit pics
What. The. F**k.
Seriously
ANGRYYYY
That seems reasonable
Look its not the first unsolicited dick pic I’ve received but I expect better from people I’d consider sort of a friend
I’m sorry….
I didn’t expect this from him either
Particularly after just making it quite clear that I do not want a dick pic. He actually said in advance im drunk sorry if I send naughty pics. And I said PLEASE DON’T SEND A DICK PIC
Haha why the f**k are you sorry .. youre not sending me dick pics
It makes me feel bad, I know you don’t hate men as a whole but this shit doesn’t keep the faith exactly
I love how he messaged me straight away
Oh I definitely hate men as a whole and this is exactly why.
There are a few exceptions.”
[61] Ms Abbott stated that a few days later she deleted Mr Fussell from Snapchat and Facebook and blocked Mr Fussell. She sent a message to Sydney Trains’ Principal Train Driver and friend Mr Daniel Bellia notifying him that Mr Fussell had sent him the offending image which she had not asked for or wanted. That message was in the following terms:
‘Oi! So im not sure if you know waterfall guard rod fussell, but he sent me a picture of his dick. I think it goes without saying I neither asked for it, nor wanted it. So I’m just messaging anyone I can think of who may know him to let them know what a f**king grub scum bag he is.’
Also hi1 Hope you and the fam are well!! 12
[62] Ms Abbott stated that she also sent a message in similar terms to 5 or 6 friends who work for Sydney Trains at Central Station in case this had happened to others. 13
[63] In Ms Abbott’s 19 March 2018 statement 14 to the Investigation she states that she was still angry about what had happened and that on her return to work she would be ‘pretty uncomfortable’ if she crossed paths with Mr Fussell.15
Evidence of Mr Dowler
[64] Mr Paul Dowler gave evidence on behalf of Sydney Trains and provided a statement to the Investigation dated 11 April 2018 and signed on 16 April 2018, as well as a further statement dated 4 December 2018. Mr Dowler was subject to cross-examination.
[65] Mr Dowler is employed as a Driver Trainer for Sydney Trains which involves training Trainee Train Drivers on the job. Mr Dowler stated that he has known both Mr Fussell and Ms Abbott since starting with Sydney Trains in 2010. Mr Dowler stated that he knew Mr Fussell more in a professional capacity than in a personal capacity whereas he probably knew Ms Abbott more in a personal capacity as they used to be neighbours. 16
[66] Mr Dowler stated that he knew Mr Fussell had been having personal issues relating to the breakup of his marriage and that he tried to reach out to Mr Fussell and made it known that he was there if Mr Fussell wanted someone to talk to.
[67] Mr Dowler had been friends with Mr Fussell and Ms Abbott on Facebook and Snapchat for ‘quite a number of years’ and since Mr Fussell’s marriage problems commenced he would be in contact by Facebook, Snapchat several times a week. It wouldn’t have been unusual for Mr Dowler to speak to Ms Abbott every day for a month.
[68] On Saturday, 24 February 2018, Mr Fussell visited Mr Dowler’s residence and was distressed over the breakdown of his marriage and ended up staying quite late.
[69] Mr Dowler stated that late on Sunday evening 25 February 2018, he received a message either through Facebook or Snapchat from Mr Fussell saying that he had accidentally sent Ms Abbott a picture of his penis. Shortly after receiving the message Mr Dowler sent a message via Facebook 17 to Ms Abbott asking whether he had just sent her a ‘dick pic’.
[70] In the message to Mr Dowler, Mr Fussell indicated that he didn’t mean to send the offending image to Ms Abbott, and that it was accidentally sent to her by him. Mr Dowler stated that Mr Fussell said in his message that he had instead intended to send a picture of his tattoo cover-up to Ms Abbott, which made sense to Mr Dowler at the time. Mr Dowler stated that Mr Fussell appeared panicked, which in Mr Dowler’s mind fitted in with the narrative provided by Mr Fussell that he had made a mistake. 18
Evidence of Matthew Quinn
[71] Mr Quinn is the Crew Manager at Cronulla/Waterfall 19 responsible for the performance of Drivers and Guards with approximately 140 staff reporting to him. Mr Quinn reported directly to the Deputy Executive Director Train Crew Samantha Abeydeera. Mr Quinn provided two written statements one dated 5 December 2018 and his statement made to the Investigation dated 14 March 2018, but signed on 19 March 2018.
[72] Mr Quinn stated that Mr Fussell’s substantive position was Guard Trainer and that Mr Fussell reported to the Shift Manager Train Crew Cronulla who reported to him. He saw Mr Fussell at least once a week at work. He had never met Ms Abbott who had been on maternity leave when he signed his 19 March 2018 statement to the Investigation. Mr Quinn stated that there may be a potential for Mr Fussell and Ms Abbott to cross paths at ‘change over points’ but that they worked in different locations, as Mr Fussell was assigned to the Waterfall Depot and Ms Abbott to the Central Station Depot.
[73] Mr Quinn stated that since January 2018 Mr Fussell had been on light duties at the Waterfall Depot due to back surgery.
[74] Mr Quinn stated that on 28 February 2018, Mr Alan Stewart the Shift Manager Train Crew Waterfall showed him a screenshot of a message (which was in similar terms to the message repeated at [61] above) that Ms Abbott sent to Principal Train Driver Daniel Bellia. Mr Quinn stated that he understood that someone had taken a screenshot of the message and sent it to Mr Stewart who in turn showed it to him.
[75] Mr Quinn stated that he was shocked by what he understood had occurred and thought it was necessary to immediately raise the incident with Ms Abeydeera the Deputy Executive Director, and he invited Mr Fussell to meet with him that afternoon to explain his actions. The meeting took place in the Shift Manager’s office in Waterfall, Mr Fussell’s substantive shift manager Ali Najjarine Shift Manager Train Crew Cronulla was also in attendance. Mr Quinn stated that Mr Fussell acknowledged that he had sent the offending image and that he had apologised to Ms Abbott and that his actions were wrong. Mr Fussell explained that he had known Ms Abbott for a while and that he had sent a text message straight away to apologise and admitted he had made a mistake. Mr Quinn stated that Mr Fussell acknowledged that it was his penis that he taken an image of and that he had meant to show Ms Abbott an image of his tattoo. Mr Abbott stated that he had sent the image from his personal phone while at home.
[76] Mr Quinn stated that Mr Fussell was emotional during the meeting and was offered the employee assistance program and advised to take sick leave which he commenced on 1 March 2018, although he left work the afternoon of the meeting with Mr Quinn on 28 February 2018.
[77] On 1 March 2018, Mr Quinn contacted the Workplace Conduct and Investigation Unit and advised them of Mr Fussell’s conduct. Mr Quinn further attested to Sydney Trains’ attempts to correct the gender imbalance in its workforce by recruiting females into train crewing roles through targeted recruitment campaigns.
Submissions of Sydney Trains
[78] Sydney Trains submitted that the sending of the offending image by Mr Fussell to a fellow employee was serious misconduct in breach of express policies of the respondent and that it constituted serious misconduct. The Sydney Trains Use of Social Media Policy applies to conduct out of hours on social media.
[79] Considering the surrounding circumstances, Sydney Trains do not accept that the offending image was sent in error and that it is more likely than not that this was a deliberate action by Mr Fussell. Sydney Trains state that Mr Fussell was provided with an opportunity to respond to the allegations and that it considered the mitigating circumstances put forward by Mr Fussell but ultimately determined that those mitigating circumstances did not outweigh the seriousness of his actions. Sydney Trains does not accept that the dismissal was harsh unjust or unreasonable.
[80] Sydney Trains stated that an investigation was held which Mr Fussell participated in with support of his union, the allegations were made clear to him and he was able to progress his objection to the proposed outcome of dismissal through the relevant review processes.
[81] The Transport for NSW Use of Social Media Policy, which applies to employees of Sydney Trains, defines social media to include social networking sites, video and photo sharing websites and instant messaging software/applications. Clause 3 - Accountabilities provides that staff are personally responsible for the content they publish in a personal capacity on any social media platform. Clause 4 - Breaches of this Policy states that the professional standards and ethical principles apply to all online activities undertaken by staff.
[82] In particular, clause 4 includes the following paragraph:
“Transport recognises that staff use social media in their personal lives. This policy does not intend to discourage nor unduly limit a staff member’s online activities. The Code of Conduct allows staff members to act in a private capacity to influence public opinion or promote issues of public interest. However staff members should ensure that the conduct is consistent with the responsibilities described above.”
[83] Clause 4 also states that if a person breaches the Policy, disciplinary action may be commenced up to and including termination of employment.
[84] Sydney Trains’ Our Code of Conduct states at clause 12 - Bullying, harassment, discrimination and inappropriate workplace conduct that there is a zero tolerance for harassment or inappropriate workplace conduct. Under Sydney Trains’ - Transport Prevention and Management of Bullying and Harassment Policy at 2.2 - What is Harassment; harassment is said to generally involve unwelcome behaviour that a reasonable person would consider intimidates, offends and/or humiliates a person. Examples of incidents that may be considered harassment are stated to include displaying or circulating sexual material, physically or electronically.
[85] It was put by Sydney Trains that the offending image, while sent outside work hours and not involving a work device, still had a connection with the workplace. The conduct was in breach of the relevant workplace policies which had application to such conduct and the conduct was incompatible with Mr Fussell’s duty as an employee. Mr Fussell and Ms Abbott were both employees of Sydney Trains and were friends on Snapchat only because they worked together. Further, following receipt of the offending image Ms Abbott sent a message regarding the incident to other employees of the respondent which was eventually seen by the Crew Manager who then reported the matter to the Investigation Unit. Ms Abbott at the time stated that the potential to have to interact with Mr Fussell in the future made her feel ‘pretty uncomfortable’.
[86] Sydney Trains also submitted that Mr Fussell was dishonest during the Investigation process by understating his Snapchat usage experience in an effort to excuse his conduct, and that his explanation as to how he came to send the offending image was implausible. It is further submitted that the mitigating circumstances regarding Mr Fussell’s marriage breakdown and physical and mental difficulties, and that he has stated he is remorseful and apologetic, are not sufficiently significant to outweigh the seriousness of his misconduct.
[87] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an Order under Division 4 of the Act granting a remedy for unfair dismissal. Section 385 of the Act provides as follows:
“S.385. A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[88] The Commission is required to decide a number of threshold issues before considering the merits of an application for an unfair dismissal remedy:
“S.396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[89] Mr Fussell’s application for unfair dismissal was made within the requisite timeframe and there is no suggestion that Mr Fussell is not a person protected from unfair dismissal. Sydney Trains are not an employer covered by the Act’s Small Business Fair Dismissal Code.
[90] Section 387 of the Act sets out the factors the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable:
“Section 387 Criteria for considering harshness
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[91] I will now consider these factors in turn.
[92] The term “valid reason” was considered by Northrop J in Selvachandran v Petron Plastics Pty Ltd 20, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, the below comments of Northrop J remain apposite:
“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc.; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”
[93] The above is authority for holding that a ‘valid reason’ means the reason for the dismissal must be sound, defensible or well founded and should not be ‘capricious, fanciful, spiteful or prejudiced.’ This approach to determining whether a valid reason exists has been and continues to be adopted by the Commission in unfair dismissal matters.
[94] The approach to the assessment, pursuant to s.387(a) of the Act, as to whether there is a valid reason for an employee’s dismissal relating to the employee’s capacity or conduct where the employee is alleged to have committed misconduct was commented on by a Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post 21:
“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd, 22 Sherman v Peabody Coal Ltd,23 Australian Meat Holdings Pty Ltd v McLauchlan .24
[35] Subject to that, as indicated by Northrop J in Selvachandran 25, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
[95] In a serious misconduct case, the Commission is concerned with whether the alleged serious misconduct in fact occurred. 26 There is no dispute that the conduct complained of by Sydney Trains occurred. However, as argued by Mr Fussell’s counsel, it is a question as to whether the ‘misconduct’ was deliberate or accidental. Forwarding the offending image would in the applicant’s submission not constitute a valid reason for dismissal if Sydney Trains were relying upon the intentional sending of the image.
[96] In the decision of Owen Sharp v BCS Infrastructure Support Pty Ltd 27 the Full Bench stated that it is well established that, for the purposes of s.387(a) of the Act, it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal.
[97] Mr Fussell contends that he intended to forward an image of a tattoo to Ms Abbott but due to his inexperience with the operation of Snapchat sent the offending image in error. Sydney Trains do not accept this explanation, stating that Mr Fussell concocted this explanation to excuse his behaviour. 28
[98] Despite Mr Fussell’s efforts in the witness box to demonstrate how he inadvertently sent the offending image, he is dammed by his preceding behaviour as described by Ms Abbott and his inability to recall a number of the messages he was said by Ms Abbott to have sent.
[99] Immediately leading up to the sending of the offending image, Ms Abbott refers to the following messages having been sent between Mr Fussell and her:
• Reference to having been drinking and to sending ‘naughty pictures’ when drunk (not recalled by Mr Fussell)
• Message from Ms Abbott not to send a picture of his dick
• Message from Mr Fussell ‘why not? Guys like ‘clit pics,’ (not recalled by Mr Fussell)
• Message from Mr Fussell that he had been trying Viagra that evening
• Message from Mr Fussell referring to being home alone and friends with benefits. (Extracted from Snapchat)
[100] There was no satisfactory explanation as to how the tattoo image (which was said by Mr Fussell to have been the intended image to be sent) related to the message conversation that was occurring at the time he sent the offending image. Ms Abbott’s evidence is unchallenged and is accepted by the Commission as what occurred, particularly where Mr Fussell was unable to recall if a particular comment was made by him.
[101] I am satisfied that the offending image was deliberately sent and Mr Fussell’s attempts to suggest otherwise strain credulity beyond any reasonableness.
[102] In addressing whether the misconduct had the relevant work connection as to bring it within the purview of the employment relationship, I note the comments of the Full Bench in John Pinawin T/A RoseVi.Hair.Face.Body v Mr Edwin Domingo 29 which made the following observation at [36] of their decision:
[36] Generally employers have no right to control or regulate an employee’s ‘out of hours conduct’. But if an employee’s conduct outside the workplace has a significant and adverse effect on the workplace, then the consequences become a legitimate concern to the employer. 30 A range of ‘out of hours conduct’ has been held to constitute grounds for termination because the potential or actual consequences of the conduct are inconsistent with the employee’s duty of fidelity and good faith. This concept is closely allied to the implied term of ‘trust and confidence’ in employment contracts which relates to modes of behaviour which allow work to proceed in a commercially and legally correct manner.31
[103] In Rose v Telstra Corporation, 32 (Rose) the Commission stated that the circumstances in which ‘out of hours’ conduct might constitute a valid reason for dismissal were limited to cases where the conduct, viewed objectively, is likely to cause serious damage to the relationship between the employer and employee, damage the employer’s interests, or is incompatible with the employee’s duties as an employee. The Commission concluded that, in essence the relevant conduct must indicate a repudiation of the employment contract by the employee.
[104] In Luke Colwell v Sydney International Container Terminals Pty Limited 33 McKenna C stated:
[79] What was put as what I accept is a real, contestable issue regarding the dismissal is that this was out-of-work conduct, not involving any work-related facilities, and involving the applicant and employees of the respondent who had self-selected to be Facebook friends – and in relation to conduct among whom the applicant has forcefully submitted is no proper business of the employer under the terms of its policies or otherwise. Here, however, there was nothing to indicate that there was anything other [than] the cornerstone of the employment relationship which led to the applicant having 20 work colleagues as his Facebook friends and sending the video to 19 of them by Messenger. Employment by the respondent of the applicant and the 19 employees is the relevant nexus here, it appears, and their being Facebook friends stemmed only from the employment. Approached another way, if there was any nexus other than that those individuals were all employees of the respondent, there was no evidence of it. The applicant selected those to whom to send the video by Messenger, including 19 of the 20 individuals who were both employees of the respondent and Facebook friends; as noted earlier, it was conceded in the proceedings that this could not have been a mishap of inadvertently hitting a “send all” or equivalent. A female employee of the respondent made plain to the applicant her comments about the video in the Messenger commentary that then went between them – and, it may be noted, in that commentary she drew a connection with work in her responses to him.’
[105] In Stephen Keenan v Leighton Boral Amey NSW Pty Ltd 34 VP Hatcher made the following comments where an employee had been dismissed for conduct involving sexual harassment:
“Because it was conduct which occurred in essentially a private social setting, albeit involving persons sharing a common employer who had just attended an official Christmas function, it was not conduct which could be regarded as indicative of a rejection or repudiation of Mr Keenan’s employment contract.”
[106] The forwarding of the offending image occurred outside of working hours and was not sent using the property of Sydney Trains. An employer should not delve into and concern itself with the private activities of its employees which occur outside working hours unless a real and relevant connection between the private activities of the employee and the employment relationship can be shown to exist.
[107] Temporal considerations such as whether the conduct occurred outside or during working hours are relevant, but only as a part of the entire factual matrix. In this instance there was no outside work connection other than the social messaging app being used. Mr Fussell had not met Ms Abbott outside of work; nor did he have Ms Abbott’s personal phone number or email.
[108] Sydney Train’s Social Media Policy, which Mr Fussell states he was aware of and supported, 35 is expressed to apply to out of work conduct when interacting with other staff including on private social media platforms.
[109] The sending of the offending image was work related in that it was contrary to the Use of Social Media Policy of Sydney Trains. Further, Ms Abbott brought the conduct to the attention of other Sydney Train employees where it soon came to the attention of Sydney Trains’ management and Ms Abbott expressed to Sydney Trains her concern that upon return to the workplace following her maternity leave she may meet Mr Fussell face to face. These circumstances cause a sufficient connection between Mr Fussell’s out of hours conduct and his employment to bring the circumstances within the principles articulated in Rose.
[110] In my view, Mr Fussell’s conduct in this instance was repudiatory; the misconduct constituted the sending of an image that was offensive and in breach of Sydney Trains’ employment policies. It therefore constituted a valid reason for termination.
[111] Having found that a valid reason for the dismissal exists, the Commission is obliged to consider the other factors contained in s.387 (b)-(h) of the Act which may be described as mitigating factors that may establish the unfairness of the dismissal. In Parmalat Food Products Pty Ltd v Wililo 36 a Full Bench stated at [24]:
“[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. ...”
[112] The Full Bench in Container Terminals Australia Limited v Toby 37 stated at paragraph 15:
“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.”
[113] In Crozier v Palazzo Corporation Pty Ltd (2000) 38 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[114] Sydney Trains submit that Mr Fussell was notified of the misconduct allegations and provided with opportunities to respond, which he did. The first notice of the misconduct allegations were sent to Mr Fussell by letter on 15 March 2018 where it was alleged he had sent a sexually explicit email image via Snapchat which may be in breach of a number of Sydney Trains’ employment policies and that an investigation had commenced.
[115] On conclusion of the Investigation, on 14 May 2018 Mr Fussell was sent correspondence by Sydney Trains stating that the allegations had been substantiated in that he had sent a sexually explicit image via snapchat which was in breach of various employment policies and that Sydney Trains had formed the preliminary view that the appropriate penalty was dismissal. He was provided with an opportunity to provide a response to this conclusion.
[116] Having considered Mr Fussell’s written response on 4 July 2018, Sydney Trains advised Mr Fussell in writing that he was to be dismissed pending the outcome of any review decision he may request through the Transport for NSW Disciplinary Panel.
[117] On 15 August 2018, following a request for review by Mr Fussell, he was advised by the Disciplinary Panel that his review was unsuccessful. In particular, the Panel decision noted Mr Fussell’s assertions that he did not intentionally send the image. The Disciplinary Panel letter stated that it did not accept that the image was sent unintentionally and referred to Mr Fussell’s lack of contrition and refusal to accept responsibility for his actions.
[118] In regard to the finding of the Transport for NSW Disciplinary Panel, Mr Fussell’s counsel complains of a breach of natural justice as Mr Fussell had never previously been put on notice that his explanation in sending the image was not accepted or that he was not contrite and refused to accept responsibility.
[119] Sydney Trains’ correspondence of 15 March 2018, 14 May 2018 and 14 July 2018 only refer to the sending of a sexually explicit image via Snapchat, (which was not disputed) in breach of various Sydney Trains’ policies. The written submissions of Sydney Trains state that Mr Fussell was dismissed “for an incident of serious misconduct and his lack of candour and honesty throughout the investigation.” 39
[120] In my view there is some substance to Mr Fussell’s procedural fairness issues. Unfortunately and surprisingly, Sydney Trains did not call in support of its decision to dismiss Mr Fussell the author of the Investigation Report or the apparent decision maker Ms Abeydeera who signed the correspondence to Mr Fussell advising of his dismissal.
[121] The Commission and the applicant were unable, other than through submissions by counsel for Sydney Trains from the bar table, to ascertain from any relevant Sydney Trains witness the basis for the comments in the correspondence from the Disciplinary Panel regarding Mr Fussell’s lack of contrition and failure to accept responsibility. While the Commission is required to determine for itself whether the conduct of sending the offending image occurred (which is hardly an onerous task where it is admitted by the applicant), questions as to what led Sydney Trains to conclude that Mr Fussell had exhibited a lack of contrition and accountability were not the subject of any evidence put before the Commission.
[122] The correspondence of Ms Abeydeera of 4 July 2018 advising Mr Fussell that Sydney Trains had concluded that the appropriate outcome for the sending of a sexually explicit image via Snapchat to Ms Abbott was ‘Dismissal’ states that Sydney Trains had considered Mr Fussell’s “responses during the investigation prior to making a final decision”. How this process was undertaken was not demonstrated to the Commission by Sydney Trains. The correspondence of 4 July 2018 from Ms Abeydeera cites a breach by Mr Fussell of the Code of Conduct; no other policy breach is cited.
[123] Sydney Trains’ witnesses Mr Dowler and Mr Quinn were not involved in the decision making process which led to Mr Fussell’s dismissal. Counsel for Sydney Trains submitted that it could be implied or suggested without it being stated in the termination letter of 4 July 2018 that Mr Fussell’s explanation for sending the offending image was not accepted by Sydney Trains.
[124] I am satisfied that Mr Fussell was notified that his dismissal arose from a breach of Sydney Trains’ Code of Conduct as this is stated in the correspondence of 4 July 2018. Earlier correspondence of 14 May 2018 refers to breaches of Use of Social Media and other policies.
[125] I am, however, unable to find that Mr Fussell was directly put on notice by Sydney Trains of the Disciplinary Panel’s comments that his explanation of accidentally sending the offending image was not accepted or that he exhibited a lack of contrition and accountability. None of the written advices to Mr Fussell, other than the final correspondence from the Disciplinary Panel, where there is no opportunity to respond, make these assertions.
[126] There is no question that Sydney Trains were aware of Mr Fussell’s explanation for sending the offending image and his expression of remorse. This was put by Mr Fussell during the Investigation and when providing his written responses. To the extent that there were procedural flaws in the process adopted by Sydney Trains this should not to be elevated above the substance of the outcome as the WA Industrial Appeal Court stated in in the Shire of Esperance v Mouritz 40:
“The unfairness of the dismissal cannot therefore be determined by the procedural unfairness alone.”
[127] In the majority decision of the High Court in Ainsworth v Criminal Justice Commission 41 it was stated:
“It is not in doubt that, where a decision making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, when viewed in its entirety, entails procedural fairness.” 42
[128] The opportunity for Mr Fussell to put his case in full to Sydney Trains was provided and considered by Sydney Trains; the same occurred in the hearing before the Commission, including his explanation of the accidental sending of the offending image and his remorse. I am satisfied that when viewed objectively Mr Fussell was aware that the decision to dismiss him was taken based on his breach of Sydney Trains’ employment policies and his explanation for so doing was taking into account.
[129] There was no suggestion that Mr Fussell was refused the opportunity to have a support person present during discussions relating to his dismissal. At the Investigation interview the minutes indicate that Mr Fussell was supported by an official from the Rail, Train and Bus Union.
[130] The dismissal of Mr Fussell related to misconduct. No issues relating to his performance as an employee were raised.
[131] Sydney Trains is a large organisation with no lack of human resource expertise. As such, it would be expected that all appropriate procedures would be adopted and followed in the dismissal of Mr Fussell.
[132] Mr Fussell’s written submissions raised a number of matters relating to the unfairness of his dismissal which were elaborated upon by his counsel. It was put that a single act, particularly when done on an accidental basis, would not evince an intention to no longer be bound by the employment contract. 43
[133] In Mr Fussell’s favour he immediately apologised to Ms Abbott, and accepted responsibility for his conduct albeit maintaining that the sending of the image occurred accidentally. Mr Fussell has a good employment record and does not have any past conduct relevant to his misconduct. Further, Mr Fussell was under personal difficulties arising from his marriage breakdown together with a number of health issues he was suffering from at the time of the incident.
[134] Mr Fussell was profusely apologetic throughout the dismissal process but at no stage has he accepted as the Commission has found, and that Sydney Trains now puts, that he made a conscious decision to send the offending image. On this basis, he has not accepted responsibility for his conduct.
[135] While the sending of the offending image may have been a one-off lapse of judgement, the image was at the extreme outer limit of offensiveness. It was unsolicited and sent after having been put on notice by Ms Abbott not to send such an image. Mr Fussell overstepped the boundaries of acceptable conduct with a fellow employee to such a degree that no amount of regret or apology can lessen the seriousness of the incident.
[136] I have also had regard to the approximate 3 month period while the review process was being undertaken that Mr Fussell was not required to attend work while being paid.
[137] Having regard to the above I find that the dismissal was not unfair. As such, Mr Fussell’s application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr R Moore of Counsel and P Ives solicitor on behalf of the applicant
Ms B Byrnes of Counsel and A Yahl solicitor on behalf of Sydney Trains
Hearing details:
2018
December 7
Printed by authority of the Commonwealth Government Printer
<PR705223>
1 Wikipedia internet encyclopaedia
2 Paragraph 7 of Affidavit of Kendall Abbott
3 Letter of 14 May 2018 signed by Samantha Abeydeera Deputy Executive Director Train Crewing
4 1 June 2018 from Maxwell Berghouse & Ives Solicitors
5 Exhibit A1
6 Page 18 of interview transcript at [29]
7 4 December 2018
8 Statement of 19 March 2018 at [3]
9 Ibid
10 On her recollection
11 At paragraph [8]
12 KA2 of 4 December 2018 statement
13 Statement of 13 March at [11] and Statement of 4 December at [7] and [8]
14 At [12]
15 Ms Abbott is no longer employed at Sydney Trains
16 16 April 2018 statement at [3]
17 See paragraph [8] of 4 December 2018 Statement
18 At paragraph [9] of 16 April 2018 Statement
19 At the time of giving his evidence Mr Quinn was Acting Director of Day Operations
20 (1995) 62 IR 371 at 373
24 (1998) 84 IR 1)
25 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
26 See for example Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1)
27 [2015] FWCFB 1033 at [32]
28 Outline of submissions 4 December 2018 at [4]
30 Farquarson v Qantas Airways [2006] 155 IR 22; Blyth Chemicals v Bushnells 133 49 CLR 66; Rose v Telstra Corporation Ltd Print Q9292.
31 McCarry G. 1998 26(2) Australian Business Law Review 141.
32 Print Q9292 [1998] AIRC 1592
34 [2015] FWC 3156 at [103]
35 Letter of 27 March 2018 sent to Investigation
37 Print S8434
38 98 IR 137
39 Written submissions of 4 December 2018 at [90]
40 71 WAIG 899
41 175 CLR 564 at 578
42 South Australia v O’Shea (1987), 163 CLR 378 at p.389 per Mason CJ
43 See comment of Buchanan in McDonald v Parnell Laboratories (Aust) [2007] FCA 1903 at [61] and the Full Bench in APS Group (Placements) Pty Ltd v Stephen O’Loughlin [2011] FWAFB 5230 at [56].