6.2.3 The evidence of Mr Walsh
320 Mr Walsh presented as a careful and honest witness whose evidence I generally accept.
321 In his first affidavit, Mr Walsh sets out the circumstances giving rise to the reasons set out in the show cause letter and which led him to decide to issue it to Mr Salama. He supports his evidence by exhibiting emails and letters to which he refers, which, I find, generally corroborate the evidence that he gives. For the most part, the most relevant emails and letters are referred to in some detail in the chronology in section 4 above, and what follows provides a brief outline of their content, together with the evidence of Mr Walsh, for the purpose of analysis.
322 Despite the fact that Mr Walsh was responsible for over 950 staff, and that Mr Salama's role of Transport Officer placed him at four levels of reporting below Mr Walsh (Mr Salama's direct line managers being Mr McClifty, Ms Francisco, Mr New and then Mr Walsh), Mr Walsh had personal knowledge of events leading to the issue of the show cause letter. He gives evidence of several matters that weighed on his decisions to issue the letter and to suspend Mr Salama.
323 First, shortly after commencing in his position as Deputy Executive Director, in late 2016 he was aware that there were "challenging relationships" in Mr Salama's work team, 5B. He was aware that a mediation had been conducted by an external consultant and that a letter had been sent by Ms Hole on 9 February 2017, set out in section 4.3 of the chronology, to the members of Team 5B (including Mr Salama) explaining the need to maintain suitable interpersonal relationships.
324 Secondly, from late 2016, Mr Salama commenced copying him into emails in relation to issues and disputes arising in the fare compliance unit. Mr Walsh formed the impression from their content that, despite Ms Hole's reminder, Mr Salama was not communicating in an appropriate manner, including by respecting his own line management in the first instance, and in his dealings with his line managers. His impression was that Mr Salama did not interact with his colleagues in a courteous, friendly manner, and that this emails were argumentative, often combative and not accepting of the reasonable directions of his managers. He sent an email on 10 April 2017 requesting Mr Salama and Mr Skundric to cease copying him in on emails, noting that Mr Walsh would handle matters that had been escalated to "Step 3" of the DSP. In his oral evidence, Mr Walsh indicated that he had earlier made a verbal request not to be sent emails not suitably addressed to him. It is apparent that Mr Walsh wished to ensure that the hierarchy of management would be observed by Mr Salama. I accept this evidence.
325 In cross-examination it was put to Mr Walsh, who agreed, that the tone of a number of emails sent by Mr Salama after February 2017 was "cordial". That was not, however, to the point. As Mr Walsh said in his evidence in chief and expanded on in cross-examination, it was his practice of sending numerous emails to "argue the toss" for no apparent legitimate purpose that caused Mr Walsh concern.
326 Thirdly, Mr Walsh was aware that after February 2017 there continued to be issues concerning Mr Salama's behaviour and that, on 18 May 2017, Ms Francisco had written to Mr Salama, requiring him to attend a first formal counselling session.
327 As Mr Walsh explained, it was Mr Salama's outright rejection of the proposed remedial action to which he was referring in item (1) of the show cause letter, when he said that Mr Salama had "failed to 'Constructively receive feedback on work performance and participate in/attend performance review meetings…'".
328 Mr Walsh gave evidence at the hearing, which I accept, that he was unaware that, on 21 June 2017, Mr Fozzard of the RTBU had raised a dispute in relation to the PCIP process commenced by Ms Francisco.
329 Importantly, I accept that Mr Walsh chose to identify the 18 May 2017 incident and what followed because it provided an example of Mr Salama refusing to accept or participate in a process of counselling to address his behaviour in relation to issues that had previously been raised by Ms Francisco. Mr Walsh was aware (by reason of the content of the letter dated 7 June 2017 but handed to Mr Salama on 20 June 2017) that previously, on 10 February, 27 April and 9 May 2017, Ms Francisco had informally counselled Mr Salama about how he should communicate within Sydney Trains in an appropriate manner following his several failures to do so.
330 Fourthly, three days after the 18 May 2017 letter, on 21 May 2017, Mr Salama commenced the stop bullying proceedings. Mr Walsh gives evidence that whilst he "had no issue" with the fact that Mr Salama was entitled to commence genuine proceedings in the Fair Work Commission, he was concerned about the timing of the application and the fact that the allegations included matters which were historical and most of which had already been investigated internally at Sydney Trains and found to be unsubstantiated. He formed the view that the stop bullying proceedings were "disingenuous and [were] in fact an illustration of the [Mr Salama's] continued pattern of behaviour of not being able to accept reasonable management action" and that Mr Salama was "unable to trust and effectively work with three levels of management above him".
331 Mr Walsh was not challenged in cross-examination in relation to this evidence. I accept that Mr Walsh was aware of the commencement of the stop bullying proceedings at the time of his decisions. I find that his concern about those proceedings concerned their timing (as an apparent response to Ms Francisco's letter of 18 May 2017 inviting him to a first formal counselling session) and that his view that the application was filed vexatiously and in an attempt to avoid reasonable management action was genuinely held. There was, as I set out in section 5.3.2 above, a rational basis for that view, but in any event, I am satisfied, and find, that Mr Walsh identified the stop bullying proceedings in the letter because he genuinely held the view that they were not filed for legitimate reasons, and were indeed filed for the purpose of avoiding reasonable management action, as he says in items (2)(a) and (b) of the show cause letter, a point he develops in (2)(c)-(f).
332 I am satisfied that Mr Walsh raised the stop bullying proceedings in the show cause letter purely to illustrate what he considered to be another example of Mr Salama's ongoing failure to comply with the required standards set out on the first page of the show cause letter by reference to Ms Hole's February 2017 letter. I do not consider that it being mentioned in the show cause letter demonstrates that part of the rationale for the decision to take adverse action was a prohibited reason. Nor do I consider that the fact that Mr Salama had raised a workplace issue in the stop bullying proceedings formed part of the motivation for the decisions made by Mr Walsh.
333 Fifthly, in his evidence in chief, Mr Walsh identifies and exhibits a chain of email correspondence which commenced after Ms Francisco sought to invite Mr Salama to a first formal counselling session.
334 It commences on 25 May 2017 with email from Mr Salama's RBTU delegate, Mr Skundric (set out above in section 4.11) where Mr Skundric requested that Mr Walsh give "urgent consideration" to alleged "adverse action" by Ms Francisco against Mr Salama. Mr Walsh directed him to his line manager, Mr New. On 26 May 2017, Mr Skundric declined to approach Mr New alleging that he was "complicit". On 29 May 2017, Mr Salama picked up the correspondence, saying that Ms Francisco "is trying to force me to attend a meeting regarding my conduct", and requesting a meeting with Mr Walsh once Mr Skundric was back from leave.
335 Mr Walsh informed him that Mr Salama should follow PCIP procedure and meet with Ms Francisco before him. Mr Salama responded on 30 May 2017 by contending that he was entitled to union representation by Mr Skundric, citing Vong v Sika. Mr Salama followed up this email with another the next day, saying to Mr Walsh that he "generally afford[s] a 48 hour window to respond, however...I request your urgent response...I will not be attending the meeting unless I am shown of my legal obligation to do so".
336 Mr Walsh responded substantively to the Vong v Sika reference, and drew attention to cl 6.8.1 of the Performance Improvement Procedure which states that he was entitled to bring a support person not a particular support person. In his response of 31 May 2017, Mr Salama disagreed with that outcome and informed Mr Walsh that he would decline to meet with Ms Francisco.
337 Mr Walsh gives evidence that the communications summarised above "only reinforced my concerns regarding what appeared to be a complete breakdown in [Mr Salama's] relationship with his line managers and his inability to accede to reasonable management action". He was not directly challenged on this view. Indeed, in my opinion, his view is supported by the correspondence.
338 This theme is picked up in items (3) and (4) of the show cause letter. In (3), Mr Walsh identifies that on 20 June 2017 Ms Francisco issued Mr Salama with a letter outlining her expectations that he "listen to and follow reasonable instructions by those in supervisory or management positions, without constantly challenging, and arguing with, decisions conveyed to you". He notes his view that this request was consistent with Sydney Trains' values and expectations as to Mr Salama's conduct.
339 In (4), he then summarises the chain of correspondence concerning the field start issue, summarised in the chronology at section 4.12 above. In cross-examination, it was again suggested to Mr Walsh that this was a cordial exchange and that it reflected a change in behaviour on the part of Mr Salama, following his receipt of the PCIP. Mr Walsh responded, credibly in my view, that whilst there was cordiality in the tone, he remained of the view that Mr Salama persisted in being argumentative and combative and failing to take reasonable directions from managers. I accept that this was a view genuinely held by Mr Walsh. Indeed, having regard to the correspondence to which I have referred, I consider it to be a rationally held view. On this basis, I am satisfied that the fact that Mr Salama exercised a workplace right with respect to the field start issue did not play any role in Mr Walsh's decision to take the adverse action.
340 Sixthly, Mr Walsh explains that the catalyst for the suspension and show cause letter was the "managers are fair game" email from Ms Francisco, which Mr New forwarded to him on 27 June 2017 (see section 4.13 in the chronology above). Mr Walsh says that he had worked with Ms Francisco for a number of years and had the impression that she was ordinarily a resilient and fair person. He was alarmed and concerned about the safety and welfare of Ms Francisco and other members of his team whom he knew to be dealing with Mr Salama. He had himself experienced first-hand Mr Salama's argumentative approach and unwillingness to accept lawful and reasonable directions from his superiors.
341 Mr Walsh's evidence is that on 19 July 2017, the day after he returned from leave, he met with Mr New about Ms Francisco's "managers are fair game" email. Mr Walsh exhibits a contemporaneous file note of that meeting, where he records his concern about the matters outlined in Ms Francisco's email, and that Mr New informed him then that he was concerned about Ms Francisco's health having regard to Mr Salama's behaviour. The note concludes:
• I am concerned about this continuing pattern of conduct/behaviour despite remedial action
• I have been across some of the issues highlighted by [Ms Francisco] and concur with her views in relation to the motivation behind them.
• I have a duty of care to [Ms Francisco] to ensure she is not subjected to unfair, harassing or unacceptable conduct or behaviour that may impact her health.
• I will seek advice as to the most appropriate course of action given that prior interventions and attempts to remediate are seemingly proving futile.
342 In cross-examination and in closing submissions, Mr Salama suggests some insouciance on the part of Mr Walsh concerning Ms Francisco's welfare, because he waited until after his leave to raise the "managers are fair game" email with Mr New. However, in my view, Mr Walsh credibly explained his delay and his regret for deferring his meeting with Mr New until after his return. Otherwise, it was not put to Mr Walsh that the views expressed in this note were not genuinely held. I find that they were.
343 In cross-examination, Mr Walsh was asked about item (5) of the show cause letter, which concerns matters raised in relation to the union rights dispute (see section 4.9 above). In the show cause letter Mr Walsh says that on 30 June 2017 he "was required to address a dispute you escalated to me in which again you challenged, and argued with, a reasonable instruction and decision conveyed to you by Ms Francisco". Mr Walsh sets out the instructions given by Ms Francisco, to the effect that while on patrol she expected Mr Salama to be patrolling, and that if he required additional time to complete his union and other duties he should request it and she would assess and accommodate where feasible. He then records Mr Salama's response (an accusation that the request appeared to be a breach of the Enterprise Agreement) and Mr Salama's later clarification as to the breach he alleged, to the effect that Ms Francisco's email "suggests that I should constantly seek your approval to fulfil my duties as HSR/Union Delegate". Mr Walsh concludes by stating that there was no basis for that assertion and, in his view, that it amounted to a challenge to a reasonable instruction from Ms Francisco. I accept that Mr Walsh held a concern that Mr Salama had received an instruction that was quite reasonable, but had failed to accept or respond to it other than by making, in Mr Walsh's view, spurious accusations of breach of the Enterprise Agreement.
344 There was evidence that, arising out of the union rights dispute, a request had been made of Mr Walsh by Mr Salama and other RTBU delegates to amend the wording of the Enterprise Agreement to clarify the position of delegates performing their duties on paid time. On 25 July 2017, the day after Mr Walsh had issued the show cause letter to Mr Salama, Mr Walsh denied this request. During cross-examination, Mr Walsh denied that this request had anything do to with the show cause letter issued to Mr Salama. I accept this evidence.
345 There is a minor dispute on the evidence as to whether Mr Walsh had previously said to Mr Salama that he would not need to seek permission each time he received a call in his role as a union delegate. Mr Walsh cannot remember the conversation, but contends that no one had suggested to Mr Salama that he had to make a request for permission for every call that he would receive as a union delegate. This is substantially consistent with the initial conversation which Ms Francisco deposes to having with Mr Salama during his 17 May 2017 PDP meeting where she said words to the effect that "[y]ou can take calls and answer emails during down-time in between trains". Rather, Mr Walsh recalls suggesting to Mr Salama (and other union delegates) that, if he was regularly having to take calls or attend to union matters, it would be in his interests to keep his managers updated, so that when it came to his PDP assessments, the amount of time that he was spending on union related matters would not come as a surprise.
346 In my view, the correspondence exhibited to the affidavits of Mr Salama, Mr Walsh and Ms Francisco supports the view expressed by Mr Walsh, namely that neither Ms Francisco nor any other representative of Sydney Trains had informed Mr Salama that he must constantly seek approval in order to attend to RTBU matters. In this context, I accept that Mr Walsh believed that Ms Francisco's direction was reasonable and that Mr Salama had no basis to argue or challenge it. I consider that this supports the view that Mr Walsh took the adverse action, not because Mr Salama had exercised a workplace right to invoke the DSP, but because he believed that Mr Salama was not able to follow reasonable directions issued by his managers.
347 In item (6) of the show cause letter, Mr Walsh refers to the notification issue as a further example of a failure on the part of Mr Salama to accept reasonable instructions without cavilling with them. In his oral evidence he defended, credibly in my view, Ms Francisco's email of 4 July 2017, asking that Mr Salama inform her of all union meetings he needed to attend "so that suitable arrangements can be made in advance" (see section 4.14 above). He expresses the view that it was a reasonable instruction that Mr Salama nonetheless challenged. He suggested that although Mr Salama's emails appeared to be quite cordial, given the context of what had been going on over a significant period of time, he was of the view that there was some gamesmanship happening. I accept that Mr Walsh genuinely held this view.
348 In item (7) of the show cause letter, Mr Walsh refers to an email exchange where Ms Francisco sent congratulations to staff on nominations to take place in a "Master Roster Review". In response, Mr Salama sent a "reply all" email where he made allegations that those nominated had been "pro management", disputed the selection process of candidates who were said to have been "hand picked by management", and said that management had "once again broken an agreement we had". Mr Walsh said that this was an argumentative and disrespectful email. He was not questioned on this view in cross-examination. In my view, he genuinely held this view which I consider is also well-supported by the text of the correspondence.
349 Mr Walsh gives evidence that based on the matters to which I have referred above and including the "managers are fair game" email from Ms Francisco, he decided to intervene and take immediate action, including to suspend Mr Salama. He provided the show cause letter to Mr Salama at a meeting on 24 July 2017. By that time he had formed the view that Mr Salama had failed to act in accordance with his obligations as an employee, as set out in the allegations of misconduct set out in the show cause letter. I accept that the allegations of misconduct made by Mr Walsh in the show cause letter arose because of Mr Walsh's view that Mr Salama had demonstrated a failure to maintain the standards of behaviour set out in the Code of Conduct set out therein. It was those matters that motivated the decision to send the show cause letter and suspend Mr Salama.
350 Further, Mr Walsh gives evidence that when he received the response to the show cause letter sent on 31 July 2017 by Mr Salama's solicitors at the time, he was disappointed that Mr Salama had failed to answer his letter with any demonstration of insight, willingness to take responsibility for his actions or an agreement to make a positive change. If he had done so, Mr Walsh would have considered his response and may have considered options other than dismissal. Mr Walsh gave written evidence, upon which he was not challenged in cross-examination, to the following effect:
In my view, [Mr Salama] failed to show any insight or reflection on the concerns raised in my letter. It was my belief, by virtue of his conduct, that [Mr Salama] believed he could not work with 3 levels of management and in my mind, that made the employment untenable. My view was that we had reached a point where there was an irretrievable breakdown of the relationship.
351 Mr Walsh subsequently prepared the briefing note for Mr Kable and recommended termination of Mr Salama's employment. He gave evidence that:
I recommended that [Sydney Trains] terminate the employment of [Mr Salama] because despite remedial action and attempts to improve his behaviour and conduct over a period of time, [Mr Salama] had failed to demonstrate the required level of competence/suitability for his position. I also took into account [Mr Salama's] response to the show cause letter of 24 July 2017 provided by his lawyer.
352 Contrary to the suggestions made in the submissions advanced by Mr Salama, it is apparent from Mr Walsh's oral and written evidence that the "competence/suitability" to which Mr Walsh referred is not concerned with Mr Salama's ability to perform the basic functions and tasks of a Transport Officer, but his ability to work within the management structure of Sydney Trains and to communicate in an appropriate manner.
353 In response to the allegations advanced by Mr Salama in this case, Mr Walsh specifically denies that he treated Mr Salama differently from, or less favourably to, other employees because he was a union delegate, because he was an HSR representative, because he assisted other employees in his role as union delegate or because he notified disputes under cl 8 of the Enterprise Agreement. He also specifically denies that any of his decisions were made for any of the reasons advanced by Mr Salama as to why Sydney Trains took unlawful adverse action.
354 I have formed the view that Mr Walsh gave consistent and credible evidence explaining his reasons for making the decisions to take adverse action against Mr Salama. To a large extent, his evidence was independently supported by the extensive documentary evidence in the form of email communications. I accept that the reasons for making his decisions to issue the show cause letter, suspend and then terminate Mr Salama from his employment, were as he stated in his affidavit material. More specifically, having regard to the presumption created by s 361(1) FW Act, I am satisfied, on the basis of his evidence, that Mr Walsh's decisions were actuated by his view that Mr Salama had, over a period of time, demonstrated an inability to comply with Sydney Trains' Code of Conduct and his position description insofar as it concerned the ability:
(a) to maintain suitable interpersonal skills and communications;
(b) to follow reasonable instructions issued by those in supervisory or management positions;
(c) to constructively receive feedback on work performance and participate in and attend performance review meetings;
(d) to work under instructions and as reasonably directed by relevant managers and to listen to and follow reasonable instructions without constantly challenging and arguing with decisions; and
(e) to work collaboratively and as a member of a team.
355 I accept that parts of the show cause letter refer to Mr Salama's conduct that involved his actions as a union delegate or involved the exercise of workplace rights. In this regard, I accept the evidence given by Mr Walsh that his motivation for issuing the show cause letter (and the steps he subsequently took) was not at all concerned with the exercise of those rights. The adverse action was taken for the reasons that I have outlined. Having regard to the whole of his evidence, including the cross-examination, I accept Mr Walsh's evidence that the workplace rights asserted by Mr Salama did not play any role in his decision-making process.