Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] Mr Ranjiv Pentiah (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in respect of his dismissal from employment with Sydney Trains (the Respondent). The matter is listed for hearing on 4 and 5 October 2022. The Applicant will be represented in those proceedings by Mr Hart of the Rail, Tram and Bus Union (the RTBU), and the Respondent will be represented by McCullough Robertson Solicitors and Counsel.

• [2] On 7 September 2022, the Respondent made an application pursuant to ss.594 and 593(3) (the Application) of the Fair Work Act 2009 (Cth) (the Act). The Application sought the following particular order:

1. An order, pursuant to s 594(1)(c) of the Fair Work Act 2009, that the name of the person providing the witness statement dated 6 September 2022 under the pseudonym 'Mr AB', or any other identifying information, is prohibited from publication to any person other than the Fair Work Commission and to Sydney Trains and their legal representatives, wherever that name or identifying information appears in all the evidence filed by the Respondent in these proceedings,.

2. An order, pursuant to s 594(1)(d) of the Fair Work Act 2009, that the Commission will not, in any part of its decision or reasons in relation to these proceedings, publish the name of the person providing the witness statement dated 7 September 2022 under the

• [3] The allegations against Mr Pentiah contained in the evidence of Mr AB are generally as follows:

(a) On Saturday 28 July 2021, Mr AB was a wheelchair bound customer of Sydney Trains who boarded a train at Mt Druitt, seeking to travel to Canterbury train station, changing at Lidcombe train station so he could attend a hospital to obtain his COVID-19 vaccination. While there were 'lockdown' measures in force at the time, the Public Health Orders permitted persons to leave their homes for various reasons, including to obtain a vaccination.

(b) At 7:30 pm, Mr AB's train arrived at Lidcombe train station and Mr Pentiah assisted Mr AB to alight the train. Mr Pentiah then spoke with Mr AB and his carer, and then took a series of photographs of Mr AB from 7:31 pm to 7.38pm. Mr AB says that he asked Mr Pentiah to not take photos of him, yet he continued to do so.

(c) Mr AB says Mr Pentiah then told him he was calling the Police. Mr AB, in an endeavour to move backwards and away from Mr Pentiah, then moved back towards the edge of the platform, with the wheels of his wheelchair crossing the 'yellow line' used to mark the area where customers should not go unless boarding or alighting the train.

(d) At 7:45pm, Mr Pentiah continued conversing with Mr AB. When he did so, he lowered his face mask. Before Mr AB's train departed, Police arrived and spoke with Mr AB. Police permitted him to continue his onward journey. Mr AB thereafter complained about Mr Pentiah's behaviour.

(a) An Affidavit of Kerry Patrick O'Brien in which he deposed that in conferences, Mr AB had expressed concern about the Applicant knowing his real name, or his address or email address. Mr AB had stated that if the Applicant knew his name or where he lived that he would not give evidence; and

(b) A letter from Mr AB's Behaviour Support Practitioner that recounted fears and concerns expressed by Mr AB relating to giving evidence at the hearing.

• [5] The RTBU resisted the Application, submitting:

(i) The Commission, under s.577 of the Act, must perform its functions and exercise its powers in a manner that:

(b) is quick and informal and avoids any unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations

(ii) The Applicant, in accordance with the principles of open and natural justice, ought to be able to fully test the credibility of statements made by Mr AB;

(iii) Neither the Respondent nor Mr AB has provided any evidence of why or how such concerns are objectively or reasonably grounded should the identity of Mr AB be made known, or set out any rational basis of his fears or concerns that connect to any conduct, save for the one interaction, with the Applicant on 28 July 2021.

(iv) Proceedings in the Commission (and courts) should be conducted openly and with transparency to give effect to the administration of justice. These proceedings are not akin to criminal proceedings involving blackmail, targeted threats, stalking, bullying or harassment and it is fit and proper that the Applicant and/or his representative know the identity of the witness.

• [6] The question of whether to make an order involves balancing the considerations of open justice and the interests of fairness and justice, taking into account how the order would affect each side. It is also appropriate to take into account the interests of Mr AB who is not a party to this proceeding, but who has given information to the Respondent.

• [7] I consider that an appropriate balance is struck by the making the Orders sought. I do not accept that the Orders affect the proper administration of justice. The Orders only limit the identification of Mr AB. The Applicant is otherwise aware of the evidence of Mr AB as he has provided a statement in the proceedings.

• [8] I particularly note that the Orders would not preclude Mr Hart, or any other representative of the Applicant, seeking to confer with Mr AB, if Mr AB were to consent to such an approach. I would expect that if such consent were forthcoming, confidentiality undertakings would be required of Mr Hart, or any other representative of the Applicant.

Printed by authority of the Commonwealth Government Printer