s.394 - Unfair dismissal

Queensland Rail Transit Authority T/A Queensland Rail

Application for unfair dismissal remedy - repeated failure to discharge duty of a Porter -deficient exercise of duty escalated into significant situation with rail customer - disciplinary history with repeated training - dismissal not harsh, unjust or unreasonable - application dismissed.

• [1] Mr John (Lwan) Czubatynskyj (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his alleged unfair dismissal by Queensland Rail Transit Authority ('Queensland Rail'/the Respondent/the Employer).

• [2] Mr Czubatynskyj was dismissed from his employment in relation to an incident that occurred where the Employer found that the Applicant had again not complied with the Porter's duties and procedures and 'acted in an improper manner in their interaction with a customer'. The Respondent stated that a serious, physical altercation occurred between a Queensland Rail customer and a private security guard, creating an unsafe situation due to the Applicant's further breaches of Queensland Rail's policies and procedures. The Employer concluded that this situation escalated from the Applicant's failure to open the fare gates and let two young customers exit. The Applicant had been subject to previous disciplinary processes for similar, deficient conduct in the discharge of his Porter duties. Mr Czubatynskyj submitted his dismissal was unfair, as his conduct did not breach the policies of Queensland Rail, and if the policies had been breached, his dismissal was a disproportionate response.

• [3] The Applicant sought reinstatement and lost wages for the period from his dismissal to the date of reinstatement. He was paid five weeks wages in lieu of notice. The Applicant stated he was 60 years of age at the time of the termination of his employment and that he had intended to complete his working life with Queensland Rail. He stated that losing his job would cause him significant economic hardship, as he provides financial support to his two children and their mother (who he is separated from). This support includes paying for two mortgages; one for his own home and the other for his children and their mother.

• [4] There was a significant volume of material filed by both parties for the Hearing and extensions were sought for the filing of this. This matter was heard in person before the Commission in Brisbane. Mr Czubatynskyj provided evidence and was represented by Mr Lucas Kennedy, Principal Industrial Officer, and Mr Chris Vicars, Industrial Support Officer, of the Australian Rail, Tram and Bus Industry Union (the Union).

• [5] Queensland Rail was represented by Mr Nick Garde, Principal Adviser Employee Relations and Mr Sebastian Harris, Employee Relations Manager. The Respondent's witnesses were Mr Scott Cornick (Security Risk and Education Team Leader), Mr Andrew Brock (Acting General Manager Station Customer Service (at the time)), Mr John Powys (Senior Manager Station Operations), Mr Chris Brett (Customer Service Manager), Ms Sara Quayle (Group Station Master at the Fortitude Valley Station), and Ms Jacqui Kane (Employee Relations Advisor). All of Queensland Rail's witnesses provided evidence at the Hearing and were cross-examined by the Union.

• [6] The Union at the Hearing presented CCTV of the final incident and asked each witness a range of questions in relation to the interaction that occurred and the actions of the Applicant as the Porter, on duty.

Relevant Legislative Provisions and Applicable Queensland Rail Policies

• [7] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

• [8] Each of these criteria in section 387 is assessed according to the factual circumstances of this matter.[1]

• [9] Section 390 of the Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed and the Applicant has been unfairly dismissed.

• [10] Furthermore, section 392 of the Act provides:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

• [11] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [12] In accordance with section 396 of the Act, it must next be determined:

(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; and

(d) whether the dismissal was a case of genuine redundancy.

• [13] The Employer stated that the Applicant's actions breached the following Queensland Rail policies:

• [14] Queensland Rail's Code of Conduct Standard policy (MD-10-62) states:

2.1.1 We have a relentless commitment to Zero Harm

Our people must perform their work in a safe manner at all times. Working safely is a

• make sure all our actions and behaviours are safe when performing our duties and follow all rules, procedures, legislative requirements and approved methods of work
• have the necessary qualification, licence, permit or accreditation, if required, to use any resource prior to using any resource
• promptly report and take appropriate action to address unsafe work practices, injuries, conditions or risks and hazards
• observe all local security procedures such as procedures for entry to Queensland Rail premises
• wear Personal Protective Equipment / clothing and use equipment according to Queensland Rail requirements.

2.2.1 We provide excellent customer service internally and externally

• be helpful, courteous, respectful and provide timely communication in all their dealings with customers
• aim to meet any commitments according to Queensland Rail's Customer Charter
• treat and handle customer's property with respect and responsibility while in the care of Queensland Rail.

2.3.1 We respect other people and demonstrate professionalism

• treat others fairly, courteously and respectfully
• make sure our workplace is inclusive and free from workplace bullying and harassment, sexual harassment, unlawful discrimination, workplace violence, vilification (including serious vilification), racial hatred and victimisation
• be appropriate in our relationships and recognise that others have the right to hold views which may differ from our own
• be unbiased and objective when making decisions
• ensure that their personal behaviour does not reflect badly on Queensland Rail
• only smoke in designated areas and in accordance with legislation
• maintain their personal hygiene, a tidy and professional appearance while on duty and wear the applicable full and current issued uniform."

• [15] Further, Queensland Rail's specific training for an employee in the position of Porter includes the following procedure, ALERT - Violence Avoidance Training (MD-14-796). The Applicant had received training regarding this procedure on a series of occasions. The ALERT procedure is as follows:

This toolbox talk is designed to provide guidance to employees on staying safe while

interacting with customers and the general public, in addition to travelling to and from work.

If you identify a potentially violent individual, do you know how to manage the situation whilst keeping yourself safe?

It is your responsibility to keep yourself safe whilst dealing with customers and the general public. To assist you in this, the ALERT training package has been developed.

It is not uncommon for Queensland Rail employees to feel obliged to intervene when they witness some kind of offence or anti-social behaviour. You must be aware that you are not obliged or trained to intervene in any capacity as an enforcement officer. This includes (but is not exclusive to):

• The multiple offences that constitute anti-social behaviour
• Verbal or physical assault
• Revenue protection including Fare evasion
• Domestic disputes
• Smoking on Queensland Rail property
• You should take steps necessary to ensure your personal safety. This can include (but is not exclusive to):
  • Changing out of Queensland Rail uniform to travel to and from work
  • Covering your Queensland Rail uniform with a sweater or other garment whilst travelling to and from work
  • Keeping your Queensland Rail identity document (including Queensland Rail Lanyard and passes) out of sight when off duty
  • Moving away from potential threats to your safety
  • Changing your travel patterns if you are regularly targeted by the same individual (catch a later train home if possible) or if you see a potential threat on the train you intend to catch
  • If travelling on a train sit near the guard cab or near the Customer Emergency Intercom (PEI).

When we talk about Awareness we mean being mindful of where you are, who is around you, where they are and how they are conducting themselves. Be aware that the way you behave towards the customer is as important as being aware of the way they behave towards you. Know where you are at any all times, no matter what you are doing, and what is your position of safety.

• Person - Is there anything about the person that I need to be aware of? What is my safe distance?
• Object - Does the person have an object on them that I need to be aware of that could cause me harm? What is my safe distance?
• Place - Is there anything about where I am that I need to be aware of? Where is my position of safety? What is my safe distance?

This means looking and listening for indicators that there is aggression or aggressive behaviour possible. Look for the body language that shows aggressive behaviour, listening for the changes in tone and volume of peoples voices. Pay attention to the changes in the mood or atmosphere of the place you are in, that could be an indication that something just isn't right.

Embrace your role and understand that you are empowered to make decisions to keep yourself safe. Understand that you should get to a position of safety and report it if you feel physically threatened and fear for your own safety, even if it means you don't complete the task you are there for.

If someone is doing the wrong thing they are very unlikely to change their behaviour because you tell them to. In fact, this has led directly to staff being assaulted so keep your safe distance and only say what is absolutely necessary to them. If they are on track or over the yellow line contact RMC.

Queensland Rail has security resources, including the Queensland Police Service Railway Squad that are responsible for offences committed on the railway.

Remember to recognise the signs of anti-social behaviour and the associated trigger points and consistently reassess what a safe distance is in every situation. Ask yourself, what are the early signs someone might be entering my personal space, and how do I 'maintain a safe distance' or 'create space' and move to my position of safety. Where is my position of safety?

If having to retreat, ensure you do so with vigilance, trying to maintain an awareness of where the threat is to ensure you can safely withdraw without physical altercation, and can safely 'create distance'.

Dependent on the severity of the incident, who you report it to will differ; however it is vital that you do tell someone. If the incident is an emergency, use a radio or telephone and get assistance if you need it and then contact Train Control on [omitted].

Remember to let others know who may come into contact with the individual such as other Station Staff, On-Board Customer Service or Rail Traffic Crew. Pay it forward but from a position of safety. Do not put yourself at risk.

Always report incidents of this nature into SIMS or Vizirail through Train Control if you don't have SIMS access."

• [16] The Applicant was employed by the Respondent under the Queensland Rail Station Operations Enterprise Agreement 2023. The Applicant was employed for well beyond the minimum employment period and the Applicant earned less than the high-income threshold. The parties agreed that the application was filed in the Commission, within the statutory 21-day period. It was not in dispute between the parties that the Respondent was not a small business employer, nor that this dismissal was a termination of employment and it was not a case of genuine redundancy. I am satisfied that Mr Czubatynskyj, in accordance with s.382, was a person protected in terms of the unfair dismissal provisions.

• [17] The Applicant was employed by the Respondent from November 2016. Since 8 June 2020, the Applicant had been employed as a Porter at the Fortitude Valley Train Station. The Applicant had received a range of related performance discussions, including a final warning on 6 July 2022, and completed a series of retraining in relation to the discharge of his duties as a Porter. The Applicant had been the subject of ongoing performance concerns and was placed on a Performance Improvement Plan (PIP) in 2023 for further breaches of duty. The Employer stated that the incident that led to the dismissal, was his further failure to exercise his Porter's duties in accordance with his policies and training as required.

The Role of a Porter and Relevant Policies and Procedures to be Used

• [18] The position description of a Porter provides that the responsibilities of a Porter include:

"1. Contribute to the overall efficiency of the station by prompt despatch of all allocated duties.

2. Attend to customer requirements by providing a standard of customer services that encourages our customers to regularly use Queensland Rail services.

3. Perform any other duties as requested by the Station Master or Officer In Charge.

4. Assist in the provision of a safe environment for customers and staff."[2]

• [19] The evidence in relation to the duties of a Porter emphasised that the Employer requires the Porter to open the fare gates to maintain the flow of customers to catch trains in a timely manner and to assist customers to enter or exit the concourse. This flow of customers is critical to reduce customer related events and is the key requirement for the Porter. Part of this duty includes that a fare or ticket is to be asked for unless it is unsafe to do so, which is based on the Porter undertaking a POP (Person, Object, Place) assessment. However, Porters do not have a revenue collection or fare evasion responsibility and the duty to assist customer movement is the clear priority. At the time of the incident, fares had been reduced to 50 cents per trip.

• [20] Mr Cornick, the Security Risk and Education Team Leader, gave evidence that the POP assessments is to be used by Porters as a quick threat assessment. The Applicant had been trained in these procedures, a number of times. Mr Cornick considered the Applicant failed to properly undertake a POP assessment on the day of the incident in relation to the return of the two customers, described below. The Union on behalf of its member argued that it must be taken into account, that the situation evolved very quickly on the return of the two customers.

• [21] On 6 August 2024, the Applicant, in his role as a Porter, failed to open a fare gate for two returning customers (a young male and female) to allow them to exit. This situation evolved into a significant altercation, between the young male customer and a privately contracted security guard. The Applicant had previously correctly opened the fare gates for these same two customers, when they had entered the concourse approximately 15 minutes prior. The Applicant initially acted in accordance with the POP procedure. At the time of their entry, the young female customer had a ticket in her hand and the young male customer was holding an open, tall bottle of beer. The Respondent's case was that the Applicant failed to simply open the fare gates to allow these customers, (on their return a short time later) to exit the concourse. The Respondent argued that the Applicant's failure to exercise his duties led to the significant escalation of the interaction, where a privately contracted security guard engaged in a confronting, physical altercation, assaulting the young male customer. The Applicant was not engaged in the assault, and the action has not be attributed to the Applicant. However, the Respondent's clear view was that this matter would not have occurred or escalated had the Applicant allowed those customers to automatically exit as per his repeated training.

• [22] The Union, on behalf of the Applicant, submitted in its final submissions, a description of the interaction between the Applicant and the two young customers. The Respondent interpreted the Applicant's interactions with the customers differently to this summary. The Applicant's limited recollection of his interaction with these customers was assessed in terms of the credit of his evidence. The Union submitted as follows (footnotes and images omitted):

"The respondent's recording that was presented to Mr Czubatynskyj and at the hearing commences at 8:14:04 PM.

At 8:14:14PM, Mr Czubatynskyj finished his conversation with [name suppressed, the pink-haired customer] and turned towards the young man and young woman to be addressed by them.

At 8:14:17 PM, the young man, young woman and Mr Czubatynskyj began to have a conversation.

Mr Czubatynskyj recalls that the young woman said, "Do you remember us? You let us in a little while ago."

This conversation did not appear hostile and to Mr Czubatynskyj's recollection it was not.

A witness statement produced by [name suppressed], the security guard captured in the footage, described this initial conversation as, "of a cordial nature".

Mr Czubatynskyj was seen during this conversation flipping a card that is used to open the faregate between his hands.

Mr Czubatynskyj cannot recall what was said by the young man during this conversation.

At 8:14:29 PM, the young man flicked a cowling cover on the faregate's emergency release switch.

At 8:14:31 PM, the young man activated the emergency switch by pressing the emergency switch in the up position.

At 8:14:32, Mr Czubatynskyj noticed that the young man had manipulated the cowling of the emergency switch and in an almost automatic fashion he closed the cowling, which returned the switch to the off position.

At this juncture the faregates "waver" as they do not instantly open to their extent as they commence closing.

At 8:14:33, the young man then attempted to push through the now closing gate, Mr Czubatynskyj, recalls saying, "You can't touch that."

At around 8:14:35 PM, the young man recoiled from impacting the gate.

His attention was then drawn to a security guard approaching from his rear. Mr Czubatynskyj recalls the security guard shouted, "He said don't touch that!"

At 8:14:37, the security guard placed his right hand around the young man's neck and the violent altercation commenced.

At 8:14:42 PM, the young man was thrown against Mr Czubatynskyj's workstation and almost onto Mr Czubatynskyj.

Mr Czubatynskyj remained at his workstation in a state of shock and extreme distress during this altercation.

Mr Czubatynskyj remained in this state until 18:14:49 PM where he used his card to open the faregate so either party could leave the station.

This was the first time Mr Czubatynskyj was able to safely access the card read or emergency switch to open the gate following the instigation of violence between the two men.

After a few seconds the two men reached a standstill, Mr Czubatynskyj was swaying in a state of distress at this time.

At 18:14:58 PM, [the pink-haired customer] called out to Mr Czubatynskyj, and she then instigated a hug with Mr Czubatynskyj.

At 18:15:08, Mr Czubatynskyj regained control of his faculties and made a radio call asking for the Assistant Station Master, seeking assistance with respect to this alteration.

At the same time a young woman with an orange/red bicycle entered the station concourse through the faregate Mr Czubatynskyj had left open.

At 18:15:21 PM, Mr Czubatynskyj attempted to raise the alarm once again on the radio.

During these two radio calls, Mr Czubatynskyj's attention was focused between the assault and the Station Office door.

Consequently, Mr Czubatynskyj failed to notice that the faregate he had earlier opened had been closed when the young woman with the bicycle had entered through it.

At 18:15:35 PM, Mr Czubatynskyj was given the instruction via radio to proceed to a position of safety, in this case the Station Office.

Mr Czubatynskyj then proceeded to exit the situation by walking to his rear and entering the Station's concourse via a faregate to his left.

At 8:15:41 PM, Mr Czubatynskyj 's supervisor, Mr Paul Delvin, Assistant Station Master, exited onto the concourse through the Station Office door.

Mr Devlin then ushered both the security guard and Mr Czubatynskyj to come to the Station Office.

Mr Czubatynskyj and Mr Devlin stood at the Station Office for around 20 seconds, with Mr Devlin as Mr Delvin attempted to usher the security guard to come to him.

The security guard then dis-engaged with the young man and joins Mr Czubatynskyj and Mr Devlin at the Station Office door.

At 8:16:07 PM the young man attempted to kick the faregate open and failed.

At 8:16:10 PM the young man turned towards the three men and yelled, "Open the fucking gate!"

The security guard then walked towards the young couple. Coming to a rest to the left of Mr Czubatynskyj's workstation where he directs the young man and young woman through the space.

At 8:16:33 PM, the young man and young woman left the station as directed by the security guard ending the incident."[3]

• [23] The Union stated that the whole incident in terms of the young couple approaching the Applicant for the second time, until the young customers were able to exit after the altercation occurred between 8:14-8:16pm on the Tuesday night. These two young customers were eventually allowed to exit from the concourse via the Porter's enclosure, by the security guard assisting them through. The Respondent stated that the Applicant could have immediately provided this exit (without any altercation occurring) or swiped them through the fare gates. The Applicant continued to work, including going back to the fare gates, until he was relieved at around 8:34pm.

• [24] On the day of the incident, the Assistant Station Master reported it via email to Ms Sara Quayle, Group Station Master at Fortitude Valley Station, and Mr Chris Brett, Customer Service Manager. Mr Brett contacted the HR Central team of the Respondent. After further enquiries, it was agreed that the matter would be assigned for investigation to Ms Jacqui Kane, Employee Relations Advisor.

• [25] While the investigation occurred, the Applicant was stood down on pay. A few days later he was returned to perform work, but on the 'platform' (rather than the concourse) at a different station at Bowen Hills. He continued to be reassigned to work there, under supervision until he was issued the Show Cause letter. The Applicant did not receive any performance complaints about his conduct, during this time, when performing different duties under supervision. The investigation took approximately nine weeks to be completed.

• [26] An information gathering meeting was initially held between the Applicant (and his Union support person) and the Respondent. The Investigation Report substantiated the claim, relying on the policies as included, that:

"It is alleged that on 6 August 2024 between approximately 20:14 and 20:15 hours, John Czubatynskyj, Porter, whilst working the fare gates at Fortitude Valley Station, acted in an improper manner in their interaction with a customer. Subsequently, a verbal and/or physical altercation occurred between a Queensland Rail customer and a Security guard, creating an unsafe situation. If proven, this is in breach of Sections 2.1.1 and/or 2.2.1 and/or 2.3.1 of the Code of Conduct (MD-10-62) and/or ALERT - Violence Avoidance Training (MD-14-796)."

• [27] The Respondent sent the Applicant a Show Cause letter on 17 October 2024. The Applicant was stood down from the alternative duty he had been performing after receipt of this letter. This letter issued by Mr Brock, General Manager Station Customer Service, stated:

"Thank you for your participation during the information gathering/investigation process. A decision regarding your ongoing employment is being considered and is explained below. ...

Regarding the Communication of Findings issued to you on 18 September 2024, you were advised that the following allegation had been substantiated in relation to your conduct:

On 6 August 2024 between approximately 20:14 and 20:15 hours, John Czubatynskyi, Porter, whilst working the fare gates at Fortitude Valley Station, acted in an improper manner in their interaction with a customer. Subsequently, a verbal and/or physical altercation occurred between a Queensland Rail customer and a Security guard, creating an unsafe situation.

As stated in the Summary of Information Gathered Report, your conduct is considered in breach of the following Queensland Rail policies and procedures, extracts of which were provided to you on 2 September 2024:

Code of Conduct Standard (MD-10-62), specifically Sections 2.1.1, 2.2.1 and 2.3.1; and

ALERT - Violence Avoidance Training (MD-14-796). (emphasis added)

On 4 October 2024, you provided the following summarised written response to the investigation findings:

• You advised that you " ...understand that there are concerns that [you] did not open the gate/closed the gate and did not react fast enough to contact assistance when the incident commenced."
• You expressed remorse for your conduct, advising that at no time were you " ...attempting to bar the customers from exiting the station...".
• You advised that you only conversed with the female customer, and advised that during this interaction, the male customer " ...made the decision to proactively press the emergency switch." You advised that this caused the gates to 'waver'.
• You advised that you " ...did call for assistance twice and followed the direction to move [to] a position of safety being the station office."
• You advised that you "...did not realise [your] instinct to tell the customer to not touch the switch would create the situation that occurred", advising that the incident has been " ...a learning experience..." with how you " ...should react to interactions/incidents like this better."

Your leaders and I have considered the evidence and your responses throughout the process and have determined that these do not mitigate your substantiated conduct. Particularly:

• Your conduct consists of breaches of Queensland Rail's policies and procedures, notably the Code of Conduct and the ALERT - Violence Avoidance training, which as a Queensland Rail employee in the role of Porter, a customer facing role, you must adhere to.
• You participated in training specific to providing excellent customer service approximately three (3) months prior to the incident. You therefore knew or ought to have known your obligations regarding appropriate workplace conduct, and what actions are appropriate in instances of fare evasion and problematic customers.
• Your responses included contradiction of the evidence and information gathered.
• Your actions of not opening the fare gates at an earlier time had the effect of the situation escalating, and an unsafe situation created, which could have put at risk customers, other QR employees, and yourself. (emphasis added).

Whilst you have expressed remorse and advised that the incident has been a 'learning experience', you have not indicated how you will modify your behaviour to ensure that such an event will not reoccur. (emphasis added).

Furthermore, your previous disciplinary history demonstrates similar breaches of Queensland Rail's Code of Conduct and the ALERT - Violence Avoidance training. This pattern of behaviour indicates that you fail to grasp the seriousness of your actions and/or you are unwilling to improve your behaviour. (emphasis added).

In breaching the policies and procedures outlined above, you have shown a serious disregard for your responsibilities as a Queensland Rail employee and the requirements of your role as a Porter. (emphasis added).

In Queensland Rail safety comes first. Always. Working safely is a condition of employment, and we all take personal accountability for the safety of customers, ourselves, our colleagues, and the general public.

Following careful consideration of the matters outlined above and your response, I am considering terminating your employment with Queensland Rail.

Before making my decision, I am providing you with 3 days to put to me, in writing, any further response or circumstances that you consider should be taken into account.

This response must be received by me no later than 5pm on Tuesday 22nd October 2024.

It is important that you respond to this letter and provide details of any additional circumstances or facts you wish Queensland Rail to take into consideration. If you do not respond, I will presume that you have no further explanation or information you wish me to consider.

Whilst you prepare your response, you are directed not to attend work from today until further notice from Queensland Rail. During this time, you will continue to be paid in accordance with Section 2.4 'Removal from role/site and/or alternative duties' of the Discipline Process Specification (MD-10-52) and must be available at Queensland Rail's request during business hours.

• [28] The Applicant, represented by his Union, provided a response to the Show Cause Letter which stated that:

"I wish to firstly deeply apologise from the deepest part of my soul. I had no idea, nor did I have the intention of creating an unsafe environment when I came to work on 6 August.

I love this job, and I love the good people that I work with and our customers. On 6 of August I was trying to be a nice person and engage with a customer in a friendly manner.

I had no indication that the young man knew/was going to press the emergency gate

I had no indication that he was somehow frustrated or going to escalate the matter to violence. I was only able to recognise something was wrong in the last second when I said, "You can't touch that". In the circumstances, I did not get much time to do anything else before the violence began. (emphasis added)

The span of time that this entire event occurred over was only in the span of few

seconds and I was in such a state of shock about this event it took me a while to regain

I had not the faintest inkling that this incident would have occurred when the female

However, I know now that I MUST seek to use the POP method more pro-actively. Which requires me to take a more nuanced and critical assessment of some of our customers when gauging their possible reactions to things we do and don't do in the workplace, for example things like opening a fare gate. I just feel that Imore genial in my dealings with people and I suppose that can lead to incidents like this one.

Going forward with a matter like this, the moment a customer indicates or implies through their previous conduct I will undertake a POP assessment and in cases like this one find that opening the fare gates will be the safest option to undertake.

I am deeply apologetic about what has happened, and I understand exactly what I need to do moving forward. I will re-acquaint myself with the ALERT training, but I also wish to be provided further guidance and training about these matters at the fare gates.

I love this job, and I am willing to undertake retraining, move to another station group,

move to another role, or be stood down on my own leave for a period of time to reflect

• [29] The Applicant received the following Termination of Employment letter from Mr Brock which specified that:

I have considered the issues raised by you in your written response to the Show Cause letter and have determined that these do not mitigate your conduct. Particularly:

• Your disciplinary history demonstrates repeated breaches of Queensland Rail's policies and procedures, notably the Code of Conduct and the ALERT - Violence Avoidance training. The repeated and consistent behaviours by you indicate that you fail to grasp the seriousness of your actions and/or you are unwilling to improve your behaviour. (emphasis added)
• You participated in training specific to providing excellent customer service approximately three (3) months prior to this incident. You therefore knew or ought to have known your obligations regarding providing excellent customer service, and what actions are appropriate in instances of fare evasion and problematic customers.
• Your actions of not opening the fare gates at an earlier time subsequently resulted in the situation to escalate, and an unsafe situation created which could have put at risk customers, other Queensland Rail employees, and yourself.
• Whilst you have expressed remorse for your conduct, expressed a willingness to move to a different role and to participate in retraining, you have not raised any matters that would mitigate your conduct.
• Whist sympathetic to your personal circumstances including financial impact, this can not counterbalance the safety risks posed by your repeated behaviour.

The Final Warning issued to you on 6 July 2022 noted that inappropriate conduct towards customers was a repeated behaviour that would not be tolerated, stating that further failure to comply with Queensland Rail's Code of Conduct and the ALERT - Violence Avoidance training may result in termination of your employment.

Given the nature of the incident, and your previous warnings and interventions, I am not confident that whether in your current or another role, that you will not place yourself or others at risk in future. (emphasis added)

In Queensland Rail safety comes first. Always. Working safely is a condition of employment, and we all take personal accountability for the safety of customers, ourselves, our colleagues, and the general public.

Accordingly, your employment with Queensland Rail will be terminated, effective 07th November 2024.

• [30] During the Applicant's employment period, he was involved in repeated incidents in relation to the discharge of his duties as a Porter. The Respondent submitted this history. Not all of these incidents represent confirmed deficient conduct, but they formed the basis of the discussions or training with the Applicant regarding the correct discharge of the Porter's duties. The history was as follows:

"a) On 30 November 2018 at 11:30pm, the Applicant was involved in a near-miss incident where he provided a direction to inebriated customers to stay behind the yellow safety line while walking along the platform. The customers were abusive to the Applicant, and he followed them to the lift to make sure they were leaving the station and one kicked out at him from inside the lift. The lift closed, and the customers left the station. The Applicant was reminded of the importance of being aware of his surroundings, positions of safety and at-risk customers, and was directed to attend an Alert training toolbox talk refresher. This situation is now used as a case scenario for Alert training.

b) On 27 November 2021, the Applicant was involved in an incident where a customer spat on him. A female customer attempted to enter the Fortitude Valley Station and the Applicant advised the customer to purchase a ticket and directed them to the Ticket Office. The customer returned with a ticket and as she entered through the barriers, she spat onto the Applicant which landed on his arm. The Assistant Station Master ensured the Applicant was okay and a reminder was added to the Fortitude Valley safety team meeting for staff to be aware of antisocial behaviour of customers.

c) On 4 January 2022, a male customer approached the Applicant at the Fare Gate barriers after attending the ticket office window and was immediately aggressive, starting with "Fuck let me out." He continued a vulgar and abusive barrage, and threatened the Applicant with violence, continuing until Security intervened and escorted the customer away. Sara Quayle, Group Station Master Fortitude Valley undertook an investigation and found that the Applicant should not have engaged with antisocial behaviour or put themselves in a confrontational position, and should have just opened the barrier to let the person out. The Applicant was spoken with and advised not to engage with anti-social behaviour and to observe and report only.

d) On 13 January 2022, the Applicant was involved in another incident where a customer spat on him. A male customer approached the Applicant at the Fare Gates and the customer's behaviour escalated quickly from swearing and yelling to pretending to take a swing at, and then spitting on the Applicant. The Applicant thought they were in a position of safety, however did not disengage and retreat to a position of safety away from the area when the customer's violence started to escalate. The Applicant was unable to report the incident due to radios not working on that night, however, Security were nearby the barrier and responded on hearing the customer's yelling. Ms Quayle performed an investigation of the incident and found the immediate cause of the incident was the Alert process was not followed by the Applicant to disengage with the customer and retreat to a position of safety.

e) On 24 April 2022, the Applicant was involved in an incident at the Fare Gates at Fortitude Valley Station when a male customer approached the barriers without a ticket. After a conversation, the customer tried to pass the barriers, but the Applicant verbally refused him entry. The customer then tried to walk through the Porter enclosure, where the Applicant was standing. In response, the Applicant stepped forward and pushed the customer back with both hands. The customer then jumped over another section of barriers. As a result, the Applicant received the Final Warning on 6 July 2022 for not following the Alert process.

f) On 5 March 2023, the Applicant was involved in an incident where a customer threw a can of mother at the Applicant, resulting in bruising and a cut to his finger. Two customers approached the fare gates and asked for the Applicant's assistance. A third customer then asked to be let through from the other side of the barriers. The Applicant advised he was helping someone else and would be with the third customer shortly. The Applicant allowed another customer through the fare gates, however did not allow access to the third customer. The third customer then proceeded to shape up the Applicant. The Applicant remained behind the fare gates and did not retreat to a position of safety. The third customer then threw a can of mother at the Applicant, hitting him in the hand. The Applicant then proceeded to move away from the fare gates and the third customer continued to insult the Applicant. The third customer then left the premises. An investigation determined the immediate cause of the incident was a result of the behaviour of the Applicant. While the Applicant was assisting two customers during the interaction, he had ample time to allow the third customer through the fare gates.27 This resulted in the Applicant being direct to attend classroom Alert training and the Performance Improvement Plan in 2023, which included discussing safety strategies learned from the Alert training to prevent similar circumstances from reoccurring in future."[4]

2023 Performance Improvement Plan - 3 March 2023 and 5 March 2023 Incidents

• [31] The Applicant had been placed on a PIP in 2023 relating to two separate incidents which had occurred within two days of each other. The first of these incidents was on 3 March 2023 where the Respondent stated that the Applicant displayed inappropriate behaviour in terms of the language used towards the Assistant Station Master, and the second incident was on 5 March 2023, (this incident was summarised in the preceding list of incidents). This incident involved a customer throwing a can of Mother at the Applicant and is referred to later in the assessment of valid reason.

• [32] The Applicant was specifically asked questions on this issue, as this was a matter which the Porter should have been able to manage according to his training. This is later dealt with under valid reason. Several review meetings were conducted as part of the PIP, including on 8 May 2023, 25 May 2023, 8 June 2023, 23 June 2023, and 20 July 2023.

• [33] The Respondent had organised for the Applicant to undertake the following courses:
  • Safety Comes First Always Workshop on 14 November 2017
  • Wirrepi Refresher on 7 August 2023
  • Improving Customer Service Outcomes on 2 May 2024

• [34] In relation to ALERT training, the Applicant's history showed that he had completed this course on these successive dates:
  • 5 December 2016 - In person workshop
  • 14 February 2018 - Toolbox tool refresher
  • 5 May 2021 - Toolbox tool refresher
  • 28 September 2021 - Web based training
  • 23 September 2022 - Toolbox tool refresher
  • 2 May 2023 - In person workshop.

• [35] Further, in relation to the Code of Conduct training, the Applicant's history showed that he had completed this on these dates:
  • 28 November 2016
  • 17 January 2017
  • 9 November 2017
  • 24 December 2018
  • 18 November 2019
  • 20 October 2020
  • 28 September 2021
  • 6 September 2022
  • 7 August 2023
  • 20 August 2024

• [36] The Applicant had repeatedly received training from the Respondent on the requirements of his Porter's duties and the applicable policies and procedures.

• [37] Mr Czubatynskyj gave evidence in the form of two witness statements. The Applicant's evidence was focused on responding to the history of incidents as described above, and critically the final incident.

• [38] The Applicant's recall of past incidents was generally proficient. For example, during re-examination the Applicant clearly recalled the incident with the can of Mother that occurred more than a year prior, 'without reading' as follows:

"...What I recall is an elderly lady come to the barrier from the platform, just up from the concourse area, and stood before me, and she was a bit confused because with the touch points you can use Go cards and you can use credit cards or debit cards. She was telling me that she - and I can't recall which order it was, but she said she touched it with one card, and then on exiting she touched it with the other card, and I was in there in the process of explaining to her how to fix that up. One of the cards could be fixed by touching on and off again, and that would complete that one. The one that she touched off with that she didn't touch on with she would have to contact Translink to get that fixed up. That was the gist of the conversation, but in the middle of that conversation I had another young fellow wanting to enter the station, and he said, 'Could you let me in', and I said, 'Just a moment, I'll be with you in a second', because I wanted to explain to this elderly lady exactly what happened so she could understand. He got a bit irate with that ..."[5]

• [39] It is reasonable to be sceptical of the Applicant's evidence given his detailed recollection of his past performance incidents, was in contrast to his limited recall of the final incident, which escalated to the significant physical altercation.

• [40] In summary, the Applicant disputed the factual basis of the final incident as relied on by the Respondent. The Respondent stated that he had again breached the Queensland Rail policies and procedures that are fundamental to the Porter's duties. The Union stated that the validity of the dismissal is based on whether the Applicant in the final incident breached the Respondent's policies as alleged (being ss 2.1.1, 2.2.1 and 2.3.1 of the Code of Conduct Standard (MD-10-62) and the ALERT - Violence Avoidance Training (MD-14-796)).

• [41] The Applicant submitted that the Queensland Rail policies had not been breached, and therefore there was not a valid reason for the dismissal. The Union stated that the Applicant was presented with an unusual and traumatic event that the Respondent's training did not prepare him for. Further, it was argued by the Union at the Hearing that the incident escalated to violence within 24 seconds and that the Applicant did not instigate this violence. In addition, the Union at the Hearing submitted that the violent nature of the altercation led him to freeze from distress and emotional upset. In conclusion, it was submitted by the Union that either there was no valid policy reason for the termination, or if there were policy breaches, they were minor and did not warrant dismissal. In addition, the Union argued that the Applicant was not afforded adequate natural justice in the investigation process. The Applicant submitted that even if the reason for the dismissal was valid, that it was harsh, unjust, and unreasonable. In his response, the Applicant referred to his circumstances as he was 60 years old and had no formal tertiary qualifications and training. The Applicant stated he had limited prospects of further employment in roles with similar renumeration, will be unable to find employment in the same role within Queensland and will be under pressure to financially support his children.

• [42] Mr Cornick, Security Risk and Education Team Leader, had been employed with the Respondent for 25 years. His evidence was focused on the past training and incidents of the Applicant, including the final incident related to the Applicant's dismissal. Mr Cornick stated he had developed and delivered the ALERT training discussed above. Mr Cornick in regard to the final incident, stated during cross-examination, that the first interaction of the Applicant with the young couple of customers was responded to by the Applicant in line with ALERT training. The Applicant had correctly followed the POP training, however the Applicant's actions during the final incident were contrary to this training.[6]

• [43] Mr Brock, Acting General Manager Station Customer Service (at the time) had been employed with the Respondent for 23 years. Mr Brock issued the Applicant with the Show Cause letter and was the person responsible for making the decision to terminate the Applicant's employment. He assessed the Applicant's non-compliant actions as dangerous.

• [44] Mr Powys, Senior Manager Station Operations, had been employed with the Respondent for 34 years, and for the past 12 years has been responsible for leading, coordinating and managing customer services and station operations across the South East Queensland network. Mr Powys endorsed the Show Cause Recommendation and the Termination Recommendation. Mr Powys also made the decision to allow the Applicant to return to work during the investigation.

• [45] Mr Brett, Customer Service Manager, had been employed with the Respondent for 18 years. He manages station operations within the city area of South East Queensland. Mr Brett endorsed issuing a Show Cause letter to the Applicant but was not involved in the decision-making process regarding the termination of employment.

• [46] Ms Quayle, Group Station Master at the Fortitude Valley Station, had been employed with the Respondent for 17 years. She oversaw the daily operations at Fortitude Valley Station. Ms Quayle's evidence focused on the Applicant's history of incidents, including previous disciplinary action. Ms Quayle agreed with the Show Cause Recommendation; Ms Quayle did not have further involvement with the decisions relating to the final incident. However, Ms Quayle volunteered in her evidence, that the Applicant was the Employer's Porter that she had the most difficulty assisting with performance management.

• [47] Ms Kane, Employee Relations Advisor, was the investigator assigned to the final incident regarding the Applicant. Ms Kane was responsible for the information gathering of the investigation and prepared an Investigation Report on this basis. Ms Kane drafted the Show Cause Recommendation and the Termination Recommendation (to be endorsed by relevant stakeholders if they agreed). Ms Kane's evidence was focused on the nature of the investigation and the Recommendations for Show Cause and the dismissal as drafted by her.

Whether there was a valid reason for the dismissal related to the person's capacity or conduct - s.387(a)

Issues of Credit with the Applicant's Evidence Related to Valid Reason

• [48] The Applicant's lack of recall with regard to the significant, final incident in comparison to, his detailed recollection of much earlier events, reduced the reliability of his evidence. The Applicant's poor recollection for the final event affected the creditability of his evidence given that, related to this event he was immediately stood down, for investigation and on which the termination of his employment was based. Therefore, it was difficult to accept the Applicant's wrong or limited recall on that event which was demonstrated when his evidence was compared with the CCTV. The Applicant initially provided that he did not have any verbal interaction on the return of the young male customer, until this customer touched the emergency switch. At this point the Applicant said "You can't touch that" to the male customer.[7] He stated that before the male customer touched the emergency switch, he was speaking to the young female customer. The Applicant said she had asked him if he remembered them, and if it was okay for them to come back later.

• [49] Once the CCTV was played at the Hearing, the Applicant revised his evidence regarding the conversation with the young male customer. The Applicant then stated that by looking at the footage it appeared that the young male customer was talking over the top of the conversation between the young female customer and himself.[8] He stated that if he had a conversation with the young male customer, that he could not recall, but then further stated "I mean it does look like we had a conversation, but I - I don't know what that was, whether it was just general stuff. I don't know."[9] This lack of recall of the critical incident by the Applicant was questionable given the dramatic events that followed.

• [50] The Applicant's evidence was not persuasive, given that the young male customer (from the CCTV) is seen talking to the Applicant from the beginning in a very animated and agitated manner, consistently gesturing with his hands throughout the interaction. The Applicant's limited recall and change in his evidence at the Hearing, affected his credibility. The Applicant had previously viewed this footage in the investigation and he and his Union representative were able to examine their copy of the footage before the Hearing.

• [51] The Applicant was able to recall details of other conversations from that day seen in the CCTV. He recalled details of his conversation with a lady described as the pink-haired customer, who was on the periphery of the altercation. The Applicant provided details of speaking to her about the new 50 cent public transport fares in Queensland and that this customer asked how he was.[10] The Applicant also referred to details of the conversation with the young female customer (providing details, such as her asking him if he remembered her and the male customer).[11] He also provided the details of his conversation with another female customer who appeared in the CCTV with a bicycle (referring to details of their conversation such as, that she wanted to go to platform 1 and 2).[12]

• [52] The Applicant also remembered specific information from incidents that occurred some years previously at the workplace in 2022 and 2023, such as the 5 March 2023 incident detailed below. The Applicant's inability to recall the details of the most recent event, the conversation with the young male customer, (he did not allow to exit and who was the subject of the assault), presented as unreliable and evasive.

• [53] The Applicant's evident regarding his interaction with the young male customer was that:

Contrary to your earlier evidence, I view that as a direct engagement and conversation with the young male?‑‑‑I could see that as you see it as well. I don't recall having a conversation with him and what it was about. That's pure honesty.

All right. But at this point in your employment history, you've been subject to a final warning, and you're on a performance improvement, and what escalates there from there is the - well, I think it's a little more than a scuffle, but I'm not suggesting you were engaged in that, but the matter escalates with the security guard. So would that not have been uppermost in your mind with that - what you had discussed with that young man? Like, was he asking for something unreasonable? Was he - - -?‑‑‑I don't believe so, Commissioner.

But you don't have a recollection?‑‑‑I don't. If there was something untoward, it would be something that would be in the back of my mind

Well, wouldn't it be in the front of your mind given that you say - - -?‑‑‑If it was, but I can't recall it. So I don't know what was - what we were engaged in. I mean, it does look like we had a conversation, but I - I don't know what that was, whether it was just general stuff. I don't know."[13]

• [54] The security guard involved in the final incident had provided a witness statement which was used in the Investigation Report and was referred to at the Hearing. The witness statement of the security guard clarified that while the Applicant began talking to the young female customer [with initially 'G'day guys, do you have a ticket?'], "the male [customer] then interjected with a brief expletive-laden tirade towards [the Applicant] saying words to the effect of F*** Off and open the F****** Gate C***". The Applicant disagreed with this because he could not recall that at all. Further, the Applicant said that young male customer "didn't ask [him] to" open the fare gate.[14] When it was raised with the Applicant during cross-examination that if he cannot recall the conversation with the young male customer, how could he disagree with the witness statement of the security guard. The Applicant stated that he is "100 per cent sure I didn't say that because I wouldn't have".[15]. The lack of recall of the conversation is convenient given the dramatic alteration that occurred with the young male customer who was wanting the fair gate opened; this being the Applicant's primary duty to open the gate to allow the exit.

• [55] The only conduct being assessed is that of the Applicant, and not that of the security guard who immediately grabbed the young male customer by the throat, threw him to the ground and was involved in the violent altercation. This conduct of the security guard is not attributed to the Applicant. However, the altercation (on the evidence of the Queensland Rail Manager) would not have occurred if the Applicant had undertaken his duties and immediately opened the gate for the customers to exit.

• [56] Under cross-examination, the Applicant agreed with the training that "ALERT violence avoidance, emphasises that the precursors most likely to contribute to an assault of a station customer service employee included offenders being drug or alcohol affected and employee interaction/behavioural requests."[16] However, the Applicant denied that he assessed the customers as potentially posing a safety risk on the basis that the young male customer had an open beer in his hand, when he initially went through the fare gates.[17] The Applicant stated that he "couldn't judge whether he was intoxicated or not because he was holding the beer bottle."[18]

• [57] The Applicant indicated that he did not notify security about these customers, because he considered that they were a risk, but just to make them aware that a customer had a beer bottle. He stated that "as far as I'm concerned it didn't seem to be a risk. He was just holding a beer bottle."[19] The Applicant confirmed that in the second interaction with the customers, when the violent incident occurred, he had not forgotten that the young male customer had been holding a beer, but observed that the customer did not have it at this time.[20] The Respondent submitted that all of the elements of the Porter's POP training; POP procedure, People, Object and Place should have guided the Applicant to correctly let the customers through by opening the fare gates, and he should have automatically done so on their return.

• [58] During cross-examination it was put to the Applicant that Mr Cornick (who retrained the Applicant), stated that during the second interaction, that the Applicant should have, at once let the customers through. The Applicant, in breach of his Porter's duties, answered that because the young female customer was "coming back to me having a conversation with me then [he didn't] feel the need to let - to open the gate immediately because I'm engaging with a conversation with her."[21]

• [59] It was emphasised by the Respondent that the Applicant had another opportunity to let these customers leave when the emergency switch was flicked by the young male customer. The Applicant provided that the gates did not open fully because the young male customer did not hit the switch, but instead "he may have touched the toggle in clicking the cowling up which may have given a sense to the gates".[22] The Applicant considered that by him taking no action, would not have allowed the customers to exit as the fare gates did not open.[23] Nevertheless, the Applicant was able to use this switch, or to otherwise open the gate and allow the customers through, or to vacate the Porter's enclosure to allow the customers to exit through there. This action would have been in accordance with the ALERT training.

• [60] The additional concern with the Applicant's conduct is that when the incident occurred, the Applicant did not immediately go to a position of safety, as is part of the POP assessment and the ALERT training. The fact that the Applicant stayed in the Porter's enclosure and did not move to a position of safety, when the altercation between the young male customer and the security guard started was raised with the Applicant. The Applicant stated that the position of safety would have been in the food court and he "kept [his] eye on what was happening, what you should do - you don't turn your back on something".[24] However, the Applicant did turn his back to the security guard and the young male customer fighting, when he turned and talked to and hugged the pink-haired customer. This hug occurred before the Applicant radioed the Assistant Station Manager to notify of the incident. The Applicant stated that he hugged this customer because she is a well-known customer of his, and "she went to comfort [him], and instinctively [he] returned the comfort. That's all it was."[25] Nevertheless, this contradicts the Applicant's statement that he did not want to turn his back to the incident. The Applicant should not have diverted his attention and hugged this customer. Instead, he should have followed the procedure and left to get into a position of safety. During the altercation, the CCTV depicts customers casually coming through the fare gates and being shocked by the violence as they observed the altercation. They clearly found it confronting.

• [61] The Union submitted that the altercation between the young male customer and the security guard caused the Applicant to 'freeze' in place from extreme distress and emotional upset. The actions of the Applicant are contrary to the Union's submission to his alleged 'frozen' response. As stated, while the altercation was occurring, the Applicant turned around and talked to and hugged the pink-haired customer. This action is not the conduct of someone who is 'frozen' in fear and his actions undermine the Union's argument.

• [62] The Applicant opened one of the fare gates at 8:14:50pm during the altercation between the security guard and the young male customer, the Applicant's representative put to Mr Cornick that this was the first point during the altercation that he could have opened the gate. Mr Cornick agreed that was the earliest available time to open the fare gate once the altercation occurred.[26] However, Mr Cornick's evidence was the fare gate should have been immediately opened on the return of these two customers. The later CCTV showed that the fare gate closed, after the customer with a bicycle walked through. The evidence demonstrated that even after this time there were other opportunities, in which the Applicant could have proceeded to open the gate again using the card readers or stood back to allow them to exit through his Porter's enclosure.

• [63] The CCTV showed the Applicant using his card to let other customers through. During re-examination, an example of this was shown at 8:29pm when there was an instance in which another customer was not able to touch on at the station, so the Applicant then opened the fare gate so they could exit. The Applicant failed to appropriately exercise his duties, leading to the violent altercation.

Discharge of the Porter's Duties in Accordance with the Respondent's Procedures

• [64] The Applicant explained that opening the fare gates was a regular response on a shift.[27] The Applicant provided that in a day there could perhaps be 10 or more conversations requiring a Porter to open the fare gates for a customer. It was agreed that for a Porter, swiping customers through when required, was a central part of their duties. Accordingly, the Applicant's failure to follow the POP procedure and immediately let the two young customers through was a significant failure of his duty.

• [65] The Applicant was asked about the Respondent's procedure of POP assessments during cross-examination, and it was agreed by the Applicant that part of the day-to-day role of a Porter is to undertake POP assessments. The Applicant provided that although he had received training on POP assessments that he is "just a normal person. I'm not a psychologist." However, the Applicant agreed that if he was confronted with a customer that was requesting to be let out without a ticket, he was expected to open the fare gate and let the customer through, and he understood that the job of a Porter is not to prevent fare evasion.[28]

• [66] In terms of his similar performance history to the final incident, the Applicant was asked about the 5 March 2023 incident, which was one of the incidents that formed the basis of him being placed on the PIP. The Applicant was asked about this incident when the customer had thrown a can of Mother at him and if the customer was going to catch a train. The Applicant recounted the incident as follows:

"...Okay. Without reading this? What I recall is an elderly lady come to the barrier from the platform, just up from the concourse area, and stood before me, and she was a bit confused because with the touch points you can use Go cards and you can use credit cards or debit cards. She was telling me that she - and I can't recall which order it was, but she said she touched it with one card, and then on exiting she touched it with the other card, and I was in there in the process of explaining to her how to fix that up. One of the cards could be fixed by touching on and off again, and that would complete that one. The one that she touched off with that she didn't touch on with she would have to contact Translink to get that fixed up. That was the gist of the conversation, but in the middle of that conversation I had another young fellow wanting to enter the station, and he said, 'Could you let me in', and I said, 'Just a moment, I'll be with you in a second', because I wanted to explain to this elderly lady exactly what happened so she could understand. He got a bit irate with that, and he was a young indigenous youth and he thought I didn't want to serve him because it was a - excuse this, but it was a black thing, and it certainly wasn't....[29]

...He said, 'It's because I'm black.' And it wasn't, and I could tell you reasons why I'm not racist, but anyway that's beside the point. Then I went back to the old lady just so she would understand it. He got irate. I think he swore at me a couple of times, and he had a can of Mother and he threatened to throw it at me, and he (indistinct) once, and I just looked at him, and then he (indistinct) again. I took a step back, and in so doing I raised my hand to about this level on the chest, because if he was going to let go I wanted to catch it. On the third instance he let go of the can and it hit my palm of my - just the padding below my thumb, which later on it bruised severely. I had a cut on my finger, and the force of the full can of Mother, it was unopened, had also hit my chest, but that wasn't too hard, and that was the incident, and I was accused of not letting him through. It was investigated. During the investigation some of the questioning was - I found a little bit ridiculous, because when I explained that I was explaining to an elderly lady one of the questions came back was 'How old was she', and I thought that was irrelevant. Obviously their line of questioning wants to blame me for something, so they asked me silly questions. I said, 'Well, she's older than me and she needed assistance.' And I got told I had ample time to let the young fellow through straight away, and that the old lady 'she would forgive you, she'd even buy you a Christmas card', and I thought that was a strange thing to say in an investigation.[30]

Yes, Commissioner, and if I wasn't there - because in my previous line of work I worked 21 years in a Commonwealth Bank. You serve the customer in front of you. You deal with that one and then go to the other one. I apologised to him, and I said, 'I'll be with you in a second.' So I was as nice as pie as far as that's concerned. I went back to the old lady, but he took offence to that. Similarly it would be if he wanted my attention and somebody else was and I went back to them I would have got in trouble for not letting him through anyway. So I can't win, and that's the point of some of these investigations. They twist the knife and want to pin you for something, and that's what they did, and all I was trying to do was assist an old lady with her queries about her Go card and debit card."[31]

• [67] The Applicant's explanation demonstrated his continued disregard for the required approach and his response clearly displayed that despite the Queensland Rail training, retraining and the straight-forward procedure in regard to Porter's opening the fare gates to move customers through, he was still not adhering to the training. The Applicant had not recognised this obligation and elected to follow and focus on the training of his previous unrelated employment, performed in a markedly different environment. The Applicant should have been focused on the training and policies of Queensland Rail. The example of serving customers sequentially in a banking environment, is the complete opposite of his training and obligation to move rail customers through by the simple swipe of his card to open the fare gates.

• [68] The Applicant exposed his lack of understanding with the training or his continued non- compliance with it, when he stated that the ALERT training did not provide specific training for a matter such as that of the final incident. It was argued on behalf of the Applicant (in terms of his view of the final incident) that it was unknown what employees of the Respondent should do where a 'cordial' conversation occurred and then the emergency switch is used in a non-emergency.[32] However this highlighted the Respondent's response that the Applicant should have immediately swiped the customers through, and it was not at all an accurate representation of the final incident. The Applicant had revealed his inability to undertake his role, and that the Respondent could have no trust and confidence in Mr Czubatynskyj doing so, in accordance with the policies.

• [69] Mr Cornick, Security Risk and Education Team Leader, during cross-examination was asked questions regarding the emergency switch and whether a Porter can use it at their discretion to open the fare gates:

THE COMMISSIONER: Whilst we are talking about this detail, Mr Cornick, having seen the footage again and the events, where do you think the porter should have intervened or opened the gate?‑‑‑I think he should have opened it fairly quickly when he saw the people coming towards him, the couple. Obviously they're going to ask him something. He should've been opening the gate already, and he's playing with his card as he's talking to them, which is obviously not what I would advise. He should be opening the gate for them, have that conversation as they're leaving. The second part of note to me is when they open the emergency gate, they just want to go and he's actively preventing them from leaving, which I think that's very much against the training that we provide.

MR KENNEDY: So what I'm putting to Mr Cornick is someone, or anyone for that matter, opening the emergency switch, for a porter, that is an unusual situation, that is a surprise, that is something that they are typically provided a direction from management, which Mr Czubatynskyj - - -

THE COMMISSIONER: But is this the only way the applicant, Mr Czubatynskyj, could have allowed those two customers to exit, by opening the emergency? ‑‑‑No, not at all. He could open - use the normal - the Go card reader that he has is the way he should have done it in the first place, and I've seen the footage again and he had ample opportunity to do that, and then the second part, and probably the most alarming for myself, is that they clearly want to leave and he's, in effect, prevented them from doing so by closing the emergency gates immediately. Those gates, it's not a secret - - -

I don't know that they actually opened, did they, they - - -?‑‑‑But they begin to open and then - sorry to interrupt you - they begin to open and Mr Czubatynskyj shuts them down again.

Okay?‑‑‑So when you push the cowling and the switch, they effectively become the same thing and the cowling pushes the switch down. I'd also add that the emergency switch is not a secret. Plenty of fare evaders use that gate to get through, or use that switch to get through. It's not uncommon.

Does it make a sound, or it just opens all of the gates?‑‑‑It just opens all the gates.

Right?‑‑‑In the footage, you even see - when the young man hits the switch, you see all of the gates begin to open, Mr Czubatynskyj closes the gate via the switch, and they all close, and that's when the young man's pushing against the gates to get out, or trying to get out.

Just one more question. Mr Kennedy has, or had, received evidence about there's a direction that the normal ways to use the emergency gates, I think - either party can correct me - but to manage large crowds from the Exhibition, those sorts of things, but is there any - you know, if there's a situation developing, is there any disciplinary response for a porter who makes a decision 'I'm opening those gates'?‑‑‑No, no. Emergency gate is a bit of a - I think it's a little bit misleading. Yes, it's used, that's what its primary use is, in case of emergency, like a fire alarm or something like that, you've got to open all the gates, but, in effect, it's a master switch to open all the gates, so, yeah, there's no alarms, they just open."

• [70] Taking into account the Applicant's non-compliance with the required procedures, the Applicant was an experienced Porter, and he had the opportunity from when the two young customers returned to open the gate and let them through. The opportunity remained even when the Applicant is having an animated conversation with the young male customer which the Applicant cannot recall. The Applicant acknowledged that opening the fare gates to let customers through is a normal occurrence. If the Applicant was concerned that he could not safely swipe his card to let them through, he then could have stepped out of the Porter's enclosure and let them through there, which is how the security guard ultimately allowed them to exit. Alternatively, he could have let them through using the emergency switch, when this was flicked (or the cowling was moved) by the young male customer. However, the Applicant closed it. In addition, even once the altercation started, he had other opportunities when the young male customer was on the ground being assaulted to open the gate.

• [71] It is acknowledged that Mr Cornick confirmed that the Applicant opened the gate at the earliest time he was safely able to do so once the altercation started. However, once the gates closed after the customer with the bicycle came through, the Applicant could have opened them again, to allow the customers to exit without the security guard ultimately having to direct them through.

• [72] During the Hearing, I requested a diagram of the card readers available to the Applicant in his position from in the Porter's enclosure at Fortitude Valley Station. A series of photos and videos were provided by consent. This evidence with respect to the layout and operations of the fare gates at Fortitude Valley Station was tendered as Exhibit 9. It was clear that the Applicant had opportunities (particularly on the customers' immediate return) to swipe his card, to open the fare gates, or to stand back from the Porter's enclosure to allow the customers to exit.

• [73] The Applicant also (contrary to the training) took some time to contact the Assistant Station Manager as the incident evolved, to notify him of the altercation. The Applicant delayed doing that, and a volatile altercation erupted between the young male customer and the security guard. What occurred was a very serious event. While the Applicant was not involved in the assault, he allowed it to ensue, when he had been repeatedly trained, that this was his primary duty as a Porter to swipe customers through to avoid customer related incidents.

• [74] The Union asked repeated questions about what the two young customers, were doing after their initial entry in the intervening fifteen minutes before they returned and if they could have purchased tickets prior to their return. There was a variety of answers, but it was generally considered unlikely that they could have travelled to another station and come back with tickets within that time. It is assumed that Queensland Rail would have had CCTV of them on the platform; but it is irrelevant to what happened in the final incident. The Applicant had already assessed the two customers upon their entry, and opened a fare gate for them previously. It was clear that on their return, they just wanted to exit, and the Applicant prevented this from occurring. His duty was to immediately allow them to exit.

• [75] In the consideration of valid reason, the Union raised an argument that Ms Kane, as the investigator was not aware of some of the relevant policies. During cross-examination, Ms Kane was questioned regarding Mr Cornick's statement which stated 'As fare gates are a potential point of conflict, this situation is highlighted in the ALERT training, as somewhere the skills are essential. The train service contract between Queensland Rail and Translink requires porters working at fare gates are to ask for a ticket or presentation of a go card unless unsafe to do so'; Ms Kane was then questioned about if she was "aware of that policy prior to today?". In response Ms Kane stated "No".[33] A short time later, Ms Kane was then further cross-examined on this "And you didn't seek out that policy at all, did you?'" to which the answer was "No."[34] However, it was not challenged that the decision makers considering the Applicant's termination were all well aware of the relevant policies for the fair consideration of the Applicant's dismissal.

• [76] The issue of the Applicant returning to work during the investigation has been assessed in terms of valid reason. As detailed previously, Queensland Rail had determined that the Applicant could be returned to work for the period of around nine weeks of the investigation, albeit at a station without fare gates, where the Applicant was under supervision. Mr Powys stated that the decision was taken to return the Applicant to the adjusted duties, whilst the investigation was completed; as in his experience, that process was more appropriate for the Applicant's physical and mental health. The Union considered this detracted from the termination of the Applicant's employment given the Applicant had also sought to return to a changed role working on the platform. In final submissions, the Union argued that the Respondent in providing this alternative work, "it would be revisionist of Queensland Rail to argue that Mr Czubatynskyj's conduct led to a serious breakdown in their trust in his ability to safely work."

• [77] The length of the investigation, undertaken in circumstances where the Applicant was sent back to work provided an expectation that the Applicant may have been reinstated. The Respondent stated that the intention to allow the Applicant to undertake different work, was to reconcile this with mental health considerations of being away from the workplace for a lengthy investigation.

• [78] This raises procedural fairness issues relevant to the investigation that it was for a prolonged period. However, it is recognised that there were issues in the investigator being able to interview all relevant parties based on availability. I have taken this issue into account in relation to the merits of the matter and the procedural fairness. The Applicant working in a different part of the workplace on the platform undertaking different work, and also under supervision, does not ameliorate that he had significant performance issues in the context of retraining, a warning, and a PIP.

• [79] The Union provided committed representation for their member but in raising new arguments at the Hearing, they did not comply with the rule in Browne v Dunn,[35] in that they did not put to witnesses, new matters they sought to rely on in their final conclusions regarding the valid reason. The following paragraphs refer to some of those issues that were raised but not presented to relevant witnesses.

• [80] The rule in Browne v Dunn provides a principle of fairness, requiring that if a party intends to contradict a witness's evidence or rely on a separate matter, they must put the substance of their contradictory proposition in relation to the witness' evidence during cross-examination. Ms Kane conceded she took various snapshots of the CCTV on her laptop using a snipping tool and placed the snapshots in a Word document. She agreed she may have enlarged some snapshots. In that process, Ms Kane was not taken by the Union to any of these snapshots to demonstrate any unfairness in the presentation of the snapshots. It was not put by the Union to Ms Kane, how the alleged failure to provide a complete chronology of time stamped snapshots in the investigation report or the recommendation to terminate the Applicant's employment, failed to provide fairness to the Applicant. However, in lieu of the snapshots, the Applicant had viewed the full CCTV of the final incident. It was not clearly put to the relevant witnesses how the absence of the purported time stamped snapshots, compromised the investigation report to the decision makers or the recommendation to dismiss the Applicant. Ms Kane was not given the opportunity during cross-examination to properly respond to this allegation.

• [81] In addition, the account of the security guard was referred to and it was put to Ms Kane by the Union that "the timing of that... exchange is incorrect".[36] Ms Kane stated that she could not "comment as to whether or not it's correct or not. It's the information that I was provided".[37] The Union had the opportunity to put what they considered was the correct timing to Ms Kane to ascertain her view, but that alternative was not fairly or properly developed for her or other witnesses' evidentiary response.

• [82] Further, the Union put to Ms Kane that the Applicant was shown the CCTV on a laptop on 4 September 2024, rather than on a large screen. The Union endeavoured to suggest, that viewing the footage on a laptop was possibly of a poorer quality. Ms Kane however agreed that the Respondent usually attempts to put the footage to the Applicant, on a large screen, but this was not able to be properly operated on the day. The Applicant in providing his evidence had later seen the footage on a big screen. The Union had also been provided with their own copy of the CCTV, prior to the Hearing (albeit after seeking an Order for production of such). The CCTV at the Hearing was viewed on laptop screens and a big screen. The issue of any alleged disadvantage of how the Applicant had viewed the footage was not appropriately put during cross-examination to relevant witnesses to demonstrate any procedural unfairness for the Applicant in relation to the manner in which the CCTV was presented. No weight can be attributed to the issue of the Applicant viewing the footage on the small screen as the basis of any procedural unfairness.

• [83] The Union submitted that the altercation between the young male customer and the security guard caused the Applicant to freeze in place from extreme distress and emotional upset. The Applicant's representative generally raised the concept of the 'flight, fight and freeze reaction' to several of the Respondent's witness, including Mr Cornick during his cross-examination.[38] This alleged freeze response formed part of the final submissions of the Applicant. The Union argued this in the mitigation of the Applicant's improper response to opening the fare gates. Before the Hearing, the only mention of the word 'freeze,' in the Union's materials is in one line in the Applicant's submissions, stating that the violence of the altercation between the security guard and the young male customer caused the Applicant to freeze in place. There is no detailed mention of the flight, fight and freeze reaction before the Hearing. The Union raised questions with some of the witnesses simply if they were aware of the flight, fight and freeze reaction. However, there were a lack of questions specifically connecting this concept to the Applicant's behaviour and if the witnesses agreed with this description and whether that excused the Applicant's non-compliance with following his training, to open the fare gates in a timely manner. The Union failed to put this argument squarely to the Applicant or other witnesses in terms of later proposing this as a mitigating argument for his conduct. In relation to this alleged flight, fight and freeze reaction, the Respondent in turn was denied the opportunity to put questions to the Applicant in regard to this alleged response. I have however taken into account the Union's argument as presented, in examining the Applicant's conduct, whilst the young male customer was being assaulted. I cannot agree that the Applicant presented on the CCTV as though he was in a frozen state, in response to the altercation. During the altercation, the Applicant stepped away and spoke to the pink-haired customer and they hugged each other. I also cannot agree that this was out of seeking or requiring some sort of comfort, it simply was an exchange and he described her as a regular customer.

• [84] None of these additional arguments raised by the Union were fairly put to the Respondent's witnesses and they did not detract from the Respondent having a valid reason for the termination of the Applicant's employment.

• [85] Taking into account all of these arguments and the circumstances, the Respondent had a valid reason for the termination of the Applicant's employment. The Applicant at the time of the final incident, had a series of performance issues in undertaking his Porter's duties, he had received a warning, repeated retraining on these duties, and had been placed on a PIP. The Applicant's failure to discharge his Porter's duties appropriately, was responsible for the escalation of the dangerous interaction in the final incident.

Whether the person was notified of that reason -s.387(b) and whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person -s.387(c)

• [86] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.[39]

• [87] The Applicant agreed that he had been given an opportunity to respond.[40] His responses have been set out earlier in this Decision. He was notified of the proposition under consideration in the information gathering process and he provided a response to that. He was also provided an opportunity to respond to the Show Cause process. The Show Cause set this out as follows:

"Regarding the Communication of Findings issued to you on 18 September 2024, you were advised that the following allegation had been substantiated in relation to your conduct:

On 6 August 2024 between approximately 20:14 and 20:15 hours, John Czubatynskyi, Porter, whilst working the fare gates at Fortitude Valley Station, acted in an improper manner in their interaction with a customer. Subsequently, a verbal and/or physical altercation occurred between a Queensland Rail customer and a Security guard, creating an unsafe situation."

• [88] It is set out that a number of the Respondent's witnesses viewed the footage of the initial interaction which involved the Applicant automatically opening the fare gates for the young male and female customers, involved in the second interaction (with the Applicant and the security guard). Those two customers had initially entered at approximately 7:50-8:00pm. That initial interaction showed the two customers entering the concourse at the station. It was agreed by both the Union and the Respondent that the Applicant had engaged in the correct POP assessment, in opening the gate and allowing the two customers to enter. It was interpreted, that the Applicant had assessed that those two customers were to be let through the fare gate based on the young female customer having a ticket, and the young male customer holding a bottle of beer. The Applicant correctly applied the Queensland Rail, POP procedure. However, he did not apply the procedure correctly on their return around 15 minutes later. His failure to automatically allow their exit caused the escalation into the violent interaction. His conduct was assessed against his history of other deficient conduct in applying the Queensland Rail policies and his series of subsequent retraining, then presented as a valid reason for dismissal.

• [89] Given the proximity of this initial entry of these customers and then them being involved in the final incident, the termination was based on the Applicant's serious error in not correctly applying the POP procedure to allow those customers to exit the concourse. The Respondent did not organise for this initial footage of approximately 15 minutes prior to the final incident to be retained. Senior managers who were involved in the investigation and provided evidence, had viewed the two pieces of CCTV, but the Applicant did not view the initial footage of him allowing appropriate, automatic entry to these customers by swiping them through at first entry.

• [90] The Applicant was entitled to view both parts of the footage for completeness as the managers had. However, the second CCTV that was provided, had the footage of the conduct that is in question. The first CCTV footage of this initial entry demonstrated the correct discharge of the Applicant's duties, and it was agreed that the Applicant's conduct was not in question in relation to that footage.

• [91] In relation to the Applicant's opportunity to respond, it is a deficiency in the Queensland Rail process that the Applicant and the Union were not given access to the same footage as the managers who gave evidence and viewed this initial footage. This failure of the Respondent is concerning given it was clear on the next day after the incident (when this matter was first referred to be the subject of a disciplinary investigation) that the initial footage from the same evening was relevant. No cogent reason was provided as to why the initial footage was not retained. Whilst this issue detracts from the procedure it does not diminish from the valid reason or the overall procedural fairness afforded to the Applicant given the second footage contained the relevant performance detail.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal - s.387(d)

• [92] In considering whether it is satisfied that procedural fairness was provided the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

• [93] The Applicant agreed that at all times he had his Union representative present as a support person present to assist in any discussions relating to the dismissal and its procedures.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal - s.387(e)

• [94] In considering whether a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to the employee's capacity to do the job, than their conduct.[41] The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.[42] In this matter, as set out at the commencement of this decision, the Applicant had been involved in a series of similar incidents and he had been trained, given a final warning and then repeatedly retrained in the policies and placed on a PIP.

• [95] Ms Quayle, Group Station Master at the Fortitude Valley Station, during cross-examination was asked if she agreed with the statement of Mr Cornick, Security Risk and Education Team Leader, being that "As fare gates are a potential point of conflict, this situation is highlighted in the ALERT training as somewhere the skills are essential. The train service contract between Queensland Rail and Translink requires porters working at fare gates are to ask for a ticket or presentation of a Go card unless unsafe to do so". Ms Quayle stated that "I've only had one employee having difficulties at the fare gates, and that's [the Applicant], so I don't regularly have issues with my staff."[43]

• [96] The Employer had reasonably exhausted all opportunities with the Applicant given the seriousness of, in the context of the Applicant's prior performance history and retraining, the outcome of his further breach of Policies on this occasion.

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 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 - s.387(f)-(g)

• [97] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal. Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.

• [98] Queensland Rail is a significantly large employer with dedicated human resources and industrial relations expertise. The process overall was fair and commensurate with the resources of a large employer.

• [99] The role of a Porter is important, but the duties to be discharged as per the procedures are relatively straightforward, that is to ensure the flow of customers by acting in accordance with the procedures. The Applicant failed to discharge his duties to allow the customers to exit and the situation became dangerous, escalating directly, due to his failure to act appropriately. Queensland Rail is a large employer and deals with a significant volume of commuters, with the priority for Porters to keep customers moving calmly and efficiently through the concourse, irrelevant of whether they have a ticket. The Applicant had been repeatedly trained in these procedures, and he failed to comply with the procedures, his training, the prior warning and the PIP.

Any other matters that the FWC considers relevant - s.387(h)

• [100] It was emphasised by Queensland Rail that there were no repercussions for a Porter for opening the emergency fare gates, or for moving from the Porter's enclosure to allow customers to exit. Further there is no responsibility placed on the Porters for lost fare revenue. In circumstances where there was no disadvantage to be visited on the Porter, for opening the fare gates, it is a stark deficiency that the Applicant failed to do so.

• [101] I have taken into account that the Applicant was returned to work during the investigation, but to a different position and working under supervision. I have also taken into consideration his years of service and his age in terms of finding further employment. The Applicant is commended for finding other employment on differing conditions, although it is recognised that he was seeking reinstatement.

• [102] The Applicant had a history of incidents relating to deficiencies in discharging his Porter's duties in accordance with the procedures and his training. The Applicant's further failure to follow policies and procedures, confirm that reinstatement cannot be sanctioned. In these circumstances, where there was no procedural unfairness in the dismissal, compensation also is not appropriate.

• [103] In addition, in its final submissions, the Respondent stated that reinstatement was opposed, due to the Applicant's history of lack of performance and the serious final incident. The Employer has lost trust and confidence in the Applicant given the continuous poor conduct. The Applicant had displayed that he cannot or will not improve his behaviour which creates a risk, that he is likely to engage in further conduct breaching the Queensland Rail policies if reinstated. This would undermine the Respondent's policies and their authority as it would send a message to the workforce and the public that these breaches are not serious.

• [104] Taking into account the aforementioned reasons; related to prior incidents of deficient conduct, the dismissal was for a valid reason, when viewed objectively and having regard to the Applicant's repeated training and disciplinary history which was conceded to by the Applicant during the Hearing. The Applicant had a history of similar prior repeated, deficient, conduct to that engaged in the final incident. Further, a fair process in accordance with Queensland Rail's policy (Discipline Process Specification (MD-10-52)) gave the Applicant multiple opportunities to respond to the reasons for dismissal (with the Union present). The dismissal was based on a valid reason and a fair procedure was followed. Therefore I do not find that the dismissal of the Applicant was harsh, unjust or unreasonable in the circumstances.

• [105] The application under s.394 is dismissed pursuant to s.385.

L Kennedy and C Vicars of the Australian Rail, Tram and Bus Industry Union, for the Applicant

[1] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[4] Respondent's Outline of Submissions.

[39] RMIT v Asher [2010] FWAFB 1200; (2010) 194 IR 1 at 14-15.

[41] Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

[42] Johnston v Woodpile Investments Pty Ltd T/A Hog's Breath Café - Mindarie [2012] FWA 2 at [58].

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