Fair Work Commission|2025-10-24

Douglas Sinclair v Transit Systems NSW Pty Ltd, Lisa Rebeiro [2025] FWC 3124 (24 October 2025)

s.365 - General protections (consent arbitration)

Application to deal with contraventions involving dismissal

[1] Mr Douglas Sinclair has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of allegations that she has been dismissed from his employment with Transit Systems Pty Ltd (Transit Systems) in contravention of Part 3-1 of the FW Act. Mr Sinclair named Ms Lisa Rebeiro, General Manager - People and Culture for Transit Systems as a second respondent.

[2] Mr Sinclair claimed in his application that he was notified of the dismissal on 2 December 2024. The application was filed on 9 December 2024 and as such is within the timeframe required by s.366(1)(a) of the FW Act.

[3] Following unsuccessful conciliation and the issuing of a certificate under s.368 of the FW Act, both respondents consented to arbitration under s.369.

[4] In summary, I have found that Mr Sinclair was dismissed during his probationary period because of his driving record and that Transit Systems did not contravene Part 3-1 of the FW Act. I have dismissed the application.

[5] Transit Systems have a contract with Transport for NSW (TfNSW) to operate a Temporary Transport Plan (TTP). This contract is for a rail replacement bus service to operate from Sydenham Train Station to Bankstown Train Station and return for 7 days a week (365 days a year) during the conversion of the train line to metro standards for a set term contract. This contract has led Transit Systems to purchase several buses and employ approximately 120 new drivers.[1]

[6] Transit Systems commenced recruitment of the bus drivers for this contract in mid-April 2024, and the service was scheduled to commence mid-August 2024. It was a condition of the TTP contract that that Transit Systems could not employ any bus driver currently employed with another bus company that was operating under a Sydney Metropolitan Route contract with TfNSW. Consequently, many of Transit Systems' drivers had not previously driven a bus and underwent training with Transit Systems to meet the inherent requirements of the role.[2]

[7] Mr Sinclair commenced employment on 18 July 2024 with Transit Systems as a bus driver working on the TTP contract pursuant to a contract dated 18 July 2024 which ended on 31 December 2025.[3] The contract was signed by Mr Stephen Merrill, who is currently Acting Regional Manager for Region 6, Transit Systems NSW. The contract provided the following in relation to the probationary period:

In accordance with the National Employment Standards, a six-month probationary period will apply to this role. Confirmation of your appointment is subject to satisfactory completion of the probationary period.[4]

[8] The contract provided the following in relation to the termination of employment:

The Company may terminate your employment summarily at any time and without notice in the case of serious misconduct, including but not limited to fraud, theft, dishonesty, or other circumstances justifying summary dismissal.

The Company may also terminate your employment with one week's notice for the following:

In the event of your termination, you will be required to reimburse any outstanding monies you owe to any of the companies in the Transit Systems Group. You will also be required to return any Company property immediately upon termination. The Company has the right to withhold

your final payment until such monies are reimbursed and all Company property has been returned.[5]

[9] Mr Sinclair said that sometime in late October 2024, Mr Roderick Primerano was appointed as the Depot Supervisor for South Granville depot, where Mr Sinclair was based.[6]

[10] Mr Sinclair provided evidence that in 2023 he worked at U-Go Mobility Tarren Point Depot as a bus driver and Mr Primerano also worked for U-Go Mobility as the Regional Manager. Mr Sinclair said that he was dismissed by U-Go Mobility and that he subsequently commenced legal proceedings against the company which were settled in May 2024.[7]

[11] Mr Primerano said that he did not have any involvement in Mr Sinclair's dismissal from

U-Go Mobility and is unaware of the reasons for Mr Sinclair's dismissal and who from U-Go Mobility was involved in the process.[8]

[12] Mr Sinclair said that after a few small interactions including early signs of bullying and harassment of Mr Sinclair by Mr Primerano, Mr Sinclair contacted Mr Michael McGee, the Chief Executive Officer of Transit Systems expressing concern about his job security.[9] Mr Sinclair produced a draft email saved at 6:44pm on 3 November 2024 which purported to be an email from Mr Sinclair to Mr McGee advising him of Mr Sinclair's previous history with Mr Primerano. However, there was no documentary evidence produced by Mr Sinclair which established that this email was actually sent to Mr McGee.

[13] Mr Sinclair said during his employment, he experienced pay irregularities, being underpaid and over-worked beyond lawfully designated break intervals. On some occasions he did not receive breaks at all. Mr Sinclair said Transit Systems set unreasonable and unachievable driving times for service delivery. Mr Sinclair said Transit Systems forced drivers to find ways to meet the prescribed running times rather than revise the times to something achievable and practical.[10]

[14] On 16 October 2024, Mr Sinclair was provided with remedial training by Transit Systems arising from an at fault accident on 9 October 2024 where he oversteered and failed to observe sufficient clearance on his off side of bus from external mirror while the bus was in motion and hit the stationary car. The driving component of the training included a driving assessment where no faults or poor driving habits were detected or noted by the trainer. Mr Primerano said that Mr Sinclair met the standard of Transit Systems NSW, Transport for NSW and the RMS at the time of the assessment. Following the remedial training, Mr Sinclair returned to normal duties.[11]

[15] Mr Shivaprakash Krishnappa is a Depot Supervisor. Mr Krishnappa was involved in the initial stages of a performance management process concerning Mr Sinclair. The first formal meeting with Mr Sinclair took place on or around 4 November 2024 and was conducted by Mr Muhammad Ali, who was the Area Manager at the time.[12]

[16] Mr Krishnappa was present at this meeting. Mr Krishnappa said that Mr Sinclair was advised of the nature of the meeting and was offered the opportunity to have a support person present. He declined and chose to proceed alone.[13]

[17] Mr Sinclair said that Mr Primerano 'tried several times to crash in on that meeting but was directed to stay out and not involve himself'.[14] Mr Primerano said that he did not approach Mr Sinclair prior to, during or after the meeting. Mr Krishnappa said that meeting was held in a private room, and Mr Primerano was not present at or involved in this meeting, nor did he interfere in any way.[15]

[18] Following that meeting, Mr Ali issued Mr Sinclair with a written warning which relevantly provided:

As was advised in the meeting, your performance fails to meet Transit Systems NSW's expectations. In particular, the below allegations summarise your breach of Company policies and procedures:

Accident 30066, on 09/10/2024 at 21:28 collided with parked vehicle at intersection of Sydenham Road and Buckley Lane.
Accident 30273, on 17/10/2024 at 06:19 collided with parked vehicle at Ewart Street and Garnet Street, Dulwich Hill.
Accident 30546, on 25/10/2024 at 08:40 collided with parked vehicle at Bridge street and Peel Street, Belmore
Accident 30591, on 28/10/2024 damaged the rear bumper, that has not been noticed by driver.
And on 30/09/2024 speeding through the intersection of Sydenham road and Victoria road, Marrickville at 22:37

You were given the opportunity to respond to the above allegations during the meeting

and you acknowledged that the above behaviour was not acceptable. You told us that the

Due to narrow lanes, scraped another parked vehicle.
Slope towards the parked vehicle, traffic conditions and speed bumps.
Narrow road and tight turns, and due to the misjudgement scraped another vehicle.
Driver was not aware of Accident.
Not aware of speeding.

The conduct as discussed at the meeting and set out above, is not in keeping with our expectations of you as an employee and of Company policy. You have breached of your obligations as an employee and of Company policy as outlined in the Driver's Guidelines Handbook, specifically:

Code of Conduct
Our Values
General Operating Instructions
Road Rules
Safety

As a result, this letter serves as a Written Warning. Please be aware that any future incidents, breaches of Company policy and/or failure to improve your performance/behaviour will result in disciplinary action, up to and including termination of employment.

Safety: Prioritize the safety of passengers, Pedestrians and themselves.
Navigation: Effectively navigate routes, roads, and hazards and keep screening the mirrors, especially during the turns.
Maintain a safe distance from other vehicles.
Follow traffic regulations, company policies and safety protocols.
Being prepared to manage unexpected situations, including accidents and emergencies.
Checking the bus regularly for any mechanical issues and report immediately to ensure the vehicle is drivable on the road.

To achieve this, the company provided Remedial Training on 16/10/2024 by Sukhdeep Sandhu.

And the company will organise another Remedial Training with the Trainer.[16]

[19] Mr Krishnappa said that Mr Sinclair subsequently completed remedial driver training on 8 November 2024. However, Mr Sinclair was involved in further driving incidents following that training. Mr Krishnappa said that a subsequent performance management meeting was conducted involving Mr Sinclair, representatives from human resources, and the Area Manager. Mr Krishnappa said that he was not present at this meeting and was not involved in the discussions or any decisions made. Mr Krishnappa's understanding is that this meeting was managed entirely by human resources and depot management.[17]

[20] On 27 November 2024, Mr Primerano issued a Letter of Allegations to Mr Sinclair. Mr Primerano said that his only involvement in any disciplinary action taken against Mr Sinclair was to write the Letter of Allegations and hand it to him. Mr Primerano said that he issued the letter because Mr Krishnappa was absent on the day and other senior managers were unavailable.[18]

[21] Mr Primerano said that the Letter of Allegations follows a set format and is a part of the inquiry stage of the investigation process and to ensure procedural fairness. This enables the employee under investigation an opportunity to reply in writing with their version of events and provide further information relevant to the investigation.[19]

[22] Mr Primerano said that the Letter of Allegation was approved by Mr Merrill. The Letter of Allegation also served as formal notification that Mr Sinclair was suspended from duty, (with pay) effective immediately, until the conclusion of the investigation.[20]

[23] Mr Sinclair said that when Mr Primerano issued the Letter of Allegations, 'he did so with deceit'. Mr Sinclair said that Mr Primerano changed his roster so that Mr Sinclair was on standby at the depot along with about eight other drivers. Mr Sinclair said that in the early afternoon Mr Primerano directed Mr Sinclair to an isolated area away from any other people and handed Mr Sinclair the letter. Mr Sinclair said that he was given no warning that he was to receive such a letter and not permitted to have a support person. Mr Sinclair said that Mr Primerano ensured there were no witnesses. Mr Sinclair said that he considered Mr Primerano's actions to be 'purely vitriolic for [their] past encounters'.[21]

[24] Mr Primerano's version of events was that he asked Mr Sinclair to accompany him to the back offices to ensure the matter was being dealt with in a discreet and respectful manner. As they entered the office space, Mr Primerano advised Mr Sinclair that he needed to issue him with a Letter of Allegations, and he was going to be stood down pending investigation. Mr Primerano said that he was certain he offered Mr Sinclair a support person even though this was not necessary at this stage as Mr Sinclair was only going to receive the Letter of Allegation.[22]

[25] The Letter of Allegations relevantly provided:

This letter is to inform you that we are conducting an investigation into allegations in relation to your conduct. We received reports of incidents that occurred recently related to your role as a bus driver. Due to the serious nature of the allegations set out below, this letter also serves as formal notification that you are suspended from duty, (with pay) effective immediately, until the conclusion of the investigation.

Transit Systems NSW has an obligation to investigate such reports. To assist us in our investigation, you are required to respond to the allegations in relation to:

1. Accident Reference No. 31082 on 15th November 2024 at 07:55 collided with Electric Light Pole located at The Boulevard near Haldon St, Lakemba.

2. Accident Reference No. 31254 on 22nd November 2024 at 06:14 collided with Electric Light Pole located at Crinan St and Floss St, Hurlstone.

3. Accident Reference No. 31397 on 26th November 2024 at 13:50 collided with sign located at Railway Pde, Sydenham.

4. On 27th October 2024 at 05:51 being identified as the driver of bus [redacted] operating through Canterbury Rd, Canterbury that was recorded by camera travelling 69km/h in an area with the speed limit of 60km/h.

[26] The letter required Mr Sinclair to provide a written response to Mr Primerano by 5pm on 29 November 2025 and to attend a meeting on Monday, 2 December at 11:00 am to discuss the findings of the investigation.

The allegations contained in this letter are considered extremely serious, and if substantiated, may result in disciplinary action, up to and including termination of your employment. Please be aware that prior warnings and your previous performance history (as well as your response to the allegations) will be taken into account in the outcome of the investigation.

[28] Mr Primerano said that the issuing of the letter was consistent with company procedure when an employee is involved in an accident which is as follows:

The driver contacts the Operational Control Centre (OCC) after the collision occurs on road
Pending the severity of the incident, OCC organises assistance as required including EAP Transit Care for injured or driver requiring counselling.
OCC sends out a SMS with incident details to Operations Managers and above.
If the driver fails to report the incident to OCC while still on the road, driver reports the incident to the Depot Supervisor, Depot Coordinators.
OCC records details of the incident and forwards the Motor Vehicle Claim Form to the depot via email. This is received by the Depot Supervisor, Mr Primerano, and Depot Coordinators.
CCTV is downloaded from the bus by the Depot Supervisor or Depot Coordinators. All collisions are reviewed by the Depot Supervisor to determine fault and escalated to Mr Primerano if further action is required outside of remedial training.

• Any disciplinary action above Warning is discussed approved by the Area Manager.[23]

[29] Mr Primerano said that Mr Sinclair sent him an email on 28 November at 1:25pm which provided:

Hello Mr Primerano, Given the shortness of notice for such a response demand, I will not be providing such a document. I will have my case ready for the Monday meeting. After that, I reserve a right to go to the Fair Work Commission and the Industrial Relations Commission regarding unfair workplace conditions. Kind Regards, Doug[24]

[30] In relation to the Letter of Allegations, Mr Sinclair gave the following evidence about the accidents:

Accident Reference No. 31082. The street sign pole was not visible in Mr Sinclair's near side rear view mirror due to being positioned behind a thick electricity pole situated between Mr Sinclair's near side mirror and the pole in question. The collision was due to tail swing of the bus as it moved off from the stop. That same pole was struck many times by other drivers and the pole was even replaced several times. Mr Sinclair submitted photos as proof but Mr. Primerano ignored the photos.

Accident Reference No. 31254. This was unavoidable due to steering off to avoid a collision with a pedestrian who ran in front of the bus to stop it after she missed the bus at the stop. Two weeks earlier Mr Sinclair was driving at Beamish Street Campsie behind another bus when a pedestrian stepped in front of that bus and died. There were a number of injured passengers who were thrown about when the driver tried to pull up quickly.

Accident Reference No. 31397. This accident occurred because the two traffic controllers where were employed to be the eyes for drivers when reverse parking, abandoned their duty to sit in picnic chairs in a side alley in the shade. Mr Sinclair said that he provided photos which demonstrated that he was not at fault this 'evidence didn't suit the bias of Mr Primerano in trying to remove [Mr Sinclair] as a payback for what happened to [Mr Primerano].'

4. Incident on 27 October 2024. Mr Sinclair said that he was not charged for speeding but received a written warning letter only. This incident took place prior to Mr Primerano commencing employment with Transit Systems. Mr Sinclair said that Mr Primerano 'dug around trying to find a collective of reasons to justify his reprisal against [Mr Sinclair]'.[25]

[31] Mr Merrill became involved in the performance management of Mr Sinclair based on the number of responsible collisions that he was having and continued to have.[26] Ms Lisa Rebeiro was previously the General Manager - People and Culture for Transit Systems.

[32] Ms Rebeiro and Mr Merrill reviewed all matters and details in Mr Sinclair's file and made the decision to terminate his employment with Transit Systems during his probationary period.[27]

[33] Mr Merrill said that the decision to terminate Mr Sinclair's employment with Transit Systems was made because of his poor on road driving performance being the high number of collisions and traffic infringements. Mr Merrill and Ms Rebeiro deemed the safety risk of continuing Mr Sinclair's employment was too great.[28]

[34] Mr Merrill said that he does not believe any of the reasons given by Mr Sinclair in his claim have any merit as he was unaware of Mr Sinclair's age until reading it in his submission and his national identity was irrelevant to his employment.[29]

[35] Ms Rebeiro said that the meeting on 2 December 2024 was attended by Ms Rebeiro and Mr Merrill along with Mr Sinclair and his support person. Mr Merrill delivered the termination verbally accompanied by a termination letter that had been signed by Ms Rebeiro.[30]

[36] The letter of termination relevantly provided:

After careful consideration and evaluation, we regret to inform you that your employment with

Transit Systems is not proceeding as anticipated during your probationary period, as such your

employment with us will cease effective Monday 2nd December 2024.

We understand that finding the right fit is crucial for both the employee and the organisation, and unfortunately, it seems that we are not aligned with your strengths and career aspirations.

We genuinely appreciate the effort and dedication you have demonstrated. We will ensure a smooth transition by completing all relevant exit documentation and will provide you with one weeks' notice period paid in lieu as per the contract of your employment requirements.

We wish you the best in your future career endeavours.

[37] Ms Rebeiro said that she and Transit Systems had no knowledge of any history between Mr Sinclair and Mr Primerano.[31]

[38] Ms Rebeiro said that while Mr Primerano was the Granville Operations Manager, he was not the TTP Manager, who was in fact Mr Merrill. Mr Primerano managed any day to day activities that occurred out of his depot, although he was not an influencer or decision maker in the ongoing employment of Mr Sinclair.[32]

[39] Ms Rebeiro said that Mr Sinclair was terminated while on probation on 2 December 2024 due to the short amount of time he had been employed with Transit Systems, the substantial financial cost to the business with his accidents/incidents, and his lack of genuine desire to work with the business on a resolution.[33]

[40] Mr Krishnappa said that he was not at work on the day Mr Sinclair's employment was formally terminated but he does not recall precisely the reason for his absence. Mr Krishnappa said that at all times during his involvement, Mr Sinclair was treated in accordance with company policy and afforded procedural fairness. Mr Krishnappa said that he did not observe any improper conduct or interference by Mr Primerano in relation to this matter.

[41] Mr Primerano said that he was not involved with the final decision to dismiss Mr Sinclair. Mr Primerano was not involved in the meeting with Mr Sinclair on 2 December 2024 and did not write, sign or issue the termination of employment letter dated 2 December 2024.

[42] Mr Sinclair said that eventually he was diagnosed by his doctor as suffering an 'adjustment disorder, anxiety predominant' and was provided a Certificate of Capacity to that effect.[34] Mr Sinclair said that Transit Systems ignored his workers compensation claim and Mr Primerano dismissed Mr Sinclair while the workers compensation claim was in process.

[43] Ms Rebeiro said that that the Certificate of Capacity was not presented by Mr Sinclair until after he was terminated by Transit Systems.[35] I note that the Certificate of Capacity which Mr Sinclair provided to the Commission was dated 2 December 2024 which is the date that Mr Sinclair was dismissed. Transit Systems provided the Commission with a copy of its letter to Mr Sinclair dated 9 December 2024 in which it advised Mr Sinclair that it was disputing his workers compensation claim .

[44] In the application, Mr Sinclair alleged he was dismissed for the following reasons in contravention of the general protections provisions in part 3-1 of the FW Act:

In relation to not getting full meal breaks and often none at all.

I am 70 years of age, and they seem to be moving to much younger candidates.

The vast majority of new employees are other than Caucasian natural Australian citizens.

[45] The application has been made under s.365 of the FW Act which provides:

365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

[46] The reference to 'this Part' in s.365(b) refers to Part 3-1 of the FW Act which deals with General Protections. The Objects of Part 3-1 are set out in s.336 and are as follows:

(a) to protect workplace rights;

(b) to protect freedom of association by ensuring that persons are:

(i) free to become, or not become, members of industrial associations; and

(ii) free to be represented, or not represented, by industrial associations; and

(iii) free to participate, or not participate, in lawful industrial activities;

(c) to provide protection from workplace discrimination;

(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

[47] The relevant protections relied upon by Mr Sinclair are protection of workplace rights and protection from workplace discrimination. Section 340 deals with the protection of workplace rights and provides:

(1) A person must not take adverse action against another person:

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note: This subsection is a civil remedy provision (see Part 4‑1).

[48] Section 341(1) deals with the meaning of workplace rights and provides:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee - in relation to his or her employment.

[49] Section 351 deals with discrimination and provides:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed - taken:

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(3) Each of the following is an anti‑discrimination law:

(a) the Anti‑Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 2010 of Victoria;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti‑Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

[50] Under item 1 of s.342(1) of the FW Act, adverse action is taken by an employer against an employee if the employer:

(b) injures the employee in his or her employment; or

(d) discriminates between the employee and other employees of the employer.

[51] Section 360 provides that for the purposes of Part 3-1, 'a person takes action for a particular reason if the reasons for the action include that reason'. Section 361 creates a presumption that requires an employer to show that it did not act for a prohibited reason. It provides:

361 Reason for action to be presumed unless proved otherwise

(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2) Subsection (1) does not apply in relation to orders for an interim injunction.

[52] The Commission's role in applications under s.365 of the FW Act is usually limited to dealing with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion under s.368. This is because the Commission can deal with a dispute by arbitration under s.369 only with the consent of the parties. The Commission has exercised powers under s.369 in a number of recent cases which set out the principles for considering applications under s.365.[36] I have had regard to these cases and the authorities they refer to in considering this matter.

[53] Like the current application, Commissioner Redford dealt with alleged breaches of ss.340 and 351 in Miss Erika Duncan v Independent Broad-Based Anti-Corruption Commission (Duncan).[37] In his decision, the Commissioner referred to the decision in Keep v Performance Automobiles Pty Ltd[38] in which a Full Bench of this Commission said that in a consent arbitration proceeding concerning an allegation that adverse action is taken because of the exercise of a workplace right, the task of the Commission is to determine three factual questions:

(a) Was the employee exercising a workplace right, within the meaning of s.341?

(b) Did the employer take 'adverse action' against the employee, within the meaning of s.342?

(c) Did the employer take the adverse action against the employee because of a prohibited reason, or for reasons which included that reason?[39]

[54] In Duncan, the Commissioner observed that a similar approach may be taken in respect to s.351, also taking into account the 'exceptions' outlined in s 351(2).[40]

[55] In relation to s.340, Mr Sinclair therefore bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, Transit Systems then bears the onus of establishing that the adverse action was not taken because Mr Sinclair had exercised a workplace right.[41] In relation to s.351, Mr Sinclair appears to suggest in his application (although this is unclear) that he was dismissed because is 70 years of age and a 'Caucasian natural Australian citizen'. If Mr Sinclair can establish that adverse action was taken against him, it therefore falls to Transit Systems was not taken because of Mr Sinclair's race or age.

Was Mr Sinclair exercising a workplace right, within the meaning of s.341?

[56] Mr Sinclair has not clearly articulated the basis upon which he claims to have been exercising a workplace right.

[57] Mr Sinclair has made allegations that during his employment, he experienced pay irregularities, being underpaid and over-worked beyond lawfully designated break intervals and sometimes did not receive breaks at all. Mr Sinclair has not pointed to the workplace law, workplace instrument or order made by an industrial body which underpins the entitlements which he alleges that Transit Systems were not providing, nor has he explained what these entitlements are. Mr Sinclair has not provided particulars in relation to occasions where he claims that Transit Systems did not provide his entitlements including dates, times and quantum of entitlements. As such, Mr Sinclair has not established that he had or exercised a workplace right within the meaning of s.341(a). Mr Sinclair has also not established that he had or exercised a workplace right within the meaning of s.341(b) as he has not explained how he is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument in relation to the occasions he claims that he experienced pay irregularities, being underpaid and over-worked beyond lawfully designated break intervals and not receiving breaks. Finally, in relation to s.341(c), Mr Sinclair made some vague references in cross-examination about making complaints about these matters to Transit Systems. However, Mr Sinclair provided no probative evidence that established that he has made a complaint or inquiry to Transit Systems about pay irregularities, being underpaid and over-worked beyond lawfully designated break intervals and not receiving breaks. On this basis, I find that Mr Sinclair has not established that he had or exercised a workplace right within the meaning of s.341(c).

[58] Mr Sinclair said that he lodged a workers compensation claim and that he was dismissed while the claim was being processed. The lodging of a workers compensation claim is likely to regarded as having or exercising a workplace right. However, Ms Rebeiro's unchallenged evidence was that Mr Sinclair did not provide the Certificate of Capacity to Transit Systems until after he was dismissed. I accept Ms Rebeiro's evidence and find that Mr Sinclair was not exercising a workplace right when he lodged the workers compensation claim.

[59] The theme running throughout Mr Sinclair's evidence was that the real reason that he was dismissed was in reprisal for incidents when Mr Primerano and Mr Sinclair were both working for U-GO Mobility Tarren Point. Mr Sinclair does not allege that this matter involves the exercise of a workplace right.

[60] Having regard to the evidence before me, I am not satisfied that Mr Sinclair exercised a workplace right within the meaning of s.341.

[61] Under item 1 of s.342(1) of the FW Act, adverse action is taken by an employer against an employee if the employer dismisses the employee. I find that Transit Systems took adverse action against Mr Sinclair when it dismissed him on 2 December 2025.

Did Transit Systems take adverse action against Mr Sinclair because of a prohibited reason or reasons that included that reason?

[62] The evidence provided by Transit Systems in relation to the dismissal and the events leading up to it was from Mr Krishnappa, Mr Primerano, Ms Rebeiro and Mr Merrill. It is important to note that Mr Sinclair did not file any evidence in response to the witness statements of Mr Krishnappa, Mr Primerano, Ms Rebeiro and Mr Merrill (although he was given an opportunity to do so) and he did not require any of them for cross-examination.

[63] The evidence establishes that at the time of the dismissal, Mr Sinclair had been employed for approximately four and a half months and was still in his probation period. Approximately three months after he commenced employment, on 9 October 2004, Mr Sinclair had his first accident and was provided with remedial training. Later in October, Mr Sinclair had three further accidents which resulted in Mr Sinclair being issued with a written warning on 4 November 2024 and provided with further training. Mr Sinclair then had a further three accidents in November before being issued with the Letter of Allegations on 27 November 2024. Mr Sinclair does not appear to dispute any of these matters.

Mr Krishnappa and Mr Ali were involved in issuing the warning to Mr Sinclair on 4 November 2024 which was signed by Mr Ali;
Mr Primerano prepared and signed the Letter of Allegations issued to Mr Sinclair on 27 November 2024;
Ms Rebeiro and Mr Merrill decided to dismiss Mr Sinclair during his probationary period after reviewing all matters and details in Mr Sinclair's file; and
Ms Rebeiro signed the termination letter issued to Mr Sinclair.

[65] Ms Rebeiro and Mr Merrill gave unchallenged evidence about the reasons for dismissal. Mr Merrill said he was unaware of Mr Sinclair's age until reading it in his submission and his national identity was irrelevant to his employment. Mr Merrill said that the decision to terminate Mr Sinclair's employment with Transit Systems was made because of his poor on road driving performance being the high number of collisions and traffic infringements. Mr Merrill said that both he and Ms Rebeiro deemed the safety risk of continuing Mr Sinclair's employment was too great. Ms Rebeiro said that Mr Sinclair was terminated while on probation on 2 December 2024 due to the short amount of time he had been employed with Transit Systems, the substantial financial cost to the business with his accidents/incidents, and his lack of genuine desire to work with the business on a resolution.

[66] Having regard to the fact that this evidence is unchallenged and that it is supported by documentary material that established that immediately prior to the dismissal, Mr Sinclair had seven accidents in a two month period, had received additional training and a written warning, I accept the reasons for termination as provided by Ms Rebeiro and Mr Merrill. I also accept the evidence of Ms Rebeiro and Mr Merrill that they were the decision makers in relation to the dismissal.

[67] Mr Sinclair does not dispute that he had seven accidents but appears to suggest that the accidents were not serious enough to justify dismissal, particularly when considering the difficult circumstances in which driving was often performed. In this regard, I note that both the decisions of Duncan[42] and Ms Kerry Cecilia Soorley v The Trustee For The Gunnebah Operating Trust (Soorley)[43] referred to the decision in Ermel v Duluxgroup (Australia) Pty Ltd (No 2)[44] in which Justice Bromberg said:

In a general protections claim brought pursuant to s 340 of the FW Act, success depends upon the Court being satisfied that the applicant has been subjected to adverse action for one or more of the specific reasons identified by the FW Act as an impermissible basis upon which action adverse to the applicant may be taken. A general protections proceeding is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome. As Gray, Cowdroy and Reeves JJ said in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 at [31]:

A general protections application is not intended to provide an opportunity for the appellant to raise whatever issues she wishes to about the validity of the steps taken before her dismissal. The crucial issue in such an application is the causal relationship between adverse action and one or more of the factors mentioned in the various provisions of Pt 3-1. The issue is whether the person who has taken the adverse action has done so because the person against whom the adverse action has been taken has one or more of the relevant characteristics or has done one or more of the relevant acts.[45]

[68] To paraphrase Deputy President Slevin in Soorley, in the context of this case, Mr Sinclair was required to establish that he exercised workplace rights or had a protected attribute (race or age) at the relevant time that he was dismissed. If so established, Transit Systems was required to rebut the presumption and establish that the reason for the adverse action was other than that Mr Sinclair exercised his workplace rights or because of his age or race. The question is not whether Mr Sinclair's dismissal was unfair, unjust, or lacked procedural fairness or whether the seven accidents either separately or together were serious enough to warrant dismissal. The question is what were the true reasons for the dismissal.[46]

[69] As Mr Sinclair has not established the existence of a workplace right it is not necessary for Transit Systems to rebut the presumption established by s 361(1) that the dismissal occurred for that reason, or reasons which include that reason. However, for completeness, I record that I accept the evidence of Ms Rebeiro and Mr Merrill and I am satisfied that the dismissal did not occur for reasons (or reasons that include) that Mr Sinclair exercised a workplace right or because of Mr Sinclair's age and/or race. Consequently, I find that Transit Systems has rebutted

[70] I find that Mr Sinclair was dismissed during his probationary period because of his driving record and do not consider that Transit Systems contravened Part 3-1 of the Act by dismissing Mr Sinclair.

Mr S. Clayer, Counsel for the first and second Respondents

[1] Statement of Steve Merrill dated 21 July 2025 (Merrill Statement) [2]-[3], Digital Hearing Book (DHB) 57

[6] Submission by Douglas Elliot Sinclair dated 9 July 2025 (Sinclair submission), DHB 22

[8] Statement of Roderick Primerano dated 21 July 2025 (Primerano Statement) [11], DHB 73

[12] Statement of Shivaprakash Krishnappa dated 21 July 2025 (Krishnappa Statement) [3], DHB 65

[15] Krishnappa Statement [5], DHB 65

[17] Krishnappa Statement [7], DHB 65

[18] Primerano Statement [23], DHB 74

[22] Primerano Statement [38]-[39], DHB 76

[30] Statement of Lisa Rebeiro dated 21 July 2025 [11], DHB 60

[35] Statement of Lisa Rebeiro dated 21 July 2025 [12], DHB 60

[36] See for example Miss Erika Duncan v Independent Broad-Based Anti-Corruption Commission [2025] FWC 1731; Ms Kerry Cecilia Soorley v The Trustee For The Gunnebah Operating Trust [2024] FWC 2754; Mr John Khuong Tran v Spinifex IT Global Pty Ltd, Mrs Christina Mulcair [2025] FWC 3060

Printed by authority of the Commonwealth Government Printer

Discrimination Act 2004

Discrimination Act 1992

Discrimination Act 1975

Discrimination Act 1984

Opportunity Act 2010

Opportunity Act 1984

Douglas Sinclair v Transit Systems NSW Pty Ltd, Lisa Rebeiro [2025] FWC 3124

At a glance

Court

Decision date

Source

Judgment (184 paragraphs)

Douglas Sinclair v Transit Systems NSW Pty Ltd, Lisa Rebeiro [2025] FWC 3124 (24 October 2025)

Parties

Legislation Cited (7)