Missed a warning light
50 In furtherance of the generally expressed Allegation that Mr Singh had "failed to follow safety policies, procedures and guidelines … including failing to carry out ... duties safely and reasonably", the gist of the second Particular is that Mr Singh had "missed" a warning light and failed to provide adequate warning to the work crew to "jump out of the way" of an approaching train.
51 With reference to this Particular, Mr Singh admitted that he had "missed" the warning light but in the written submissions filed with the Commission he submitted (without alteration):
For the reasons explained above, each of the allegations was unfounded. In short:
(a) Mr Singh's movement to a different position was necessitated by Mr Lyne's decision to direct Mr Ivanovski to work unsafely on the Up Main line;
(b) the incident was not a near miss, and no worker jumped out of the way of a train;
(c) the incident was reported to the Network Controller, who took no further action; and
(d) Sydney Trains itself did not label the incident a near miss until it took disciplinary action against Mr Singh.
52 Again, there can be no doubt that the Commission engaged with the gist of this submission being made on behalf of Mr Singh. It thus recounted Mr Lynn's account of the incident as follows:
[14] Mr Lynn claimed that the only time he told Mr Singh to take up his Lookout position was when he came over to him to say something about the measurement and not having the designs. He said nothing about safety and did not tell him to stop work (as claimed by Mr Singh). Mr Lynn told him to get back to his Lookout post, because the crew was left vulnerable in an unsafe place. Mr Lynn believed that if he had been so concerned about safety, he should not have walked over to him, as Mr Singh was supposed to be watching the warning light, and had a sound horn and whistle which could have been used. There was absolutely no reason to leave his post as Up Local Lookout. Mr Lynn said he could not recall anyone jumping out of the way of the train on the Up Local. However, they were all very startled when it passed.
[15] Mr Lynn denied that after the incident, Mr Singh had instructed him not to do any measurements on the Down Local or Up Main again. Mr Lynn recalled the measurers 'getting stuck into Mr Singh' about what had happened (him missing the warning light). Mr Lynn said he asked Mr Singh twice to report the incident, but he did not. Mr Lynn accepted that there was a general consensus in the Team to return to work. He did not make that decision or direct anyone to do so.
53 Rejected is the submission advanced on behalf of Mr Singh to this Court that this is but a further instance of the Commission merely setting forth the evidence without engaging with it and resolving (for example) a conflict in the evidence - in this case the conflict of the account given by Mr Singh as opposed to Mr Lynn, including the fact that Mr Lynn could not recall anyone "jumping out of the way" of the approaching train. In circumstances where the Commission had resolved questions of credibility and reliability adversely to Mr Singh, the Commission need do no more: Reasons at para [332]. The Commission, in any event, went further and seized upon this incident as but another reason for resolving the question of credibility and reliability adversely to Mr Singh. In addition to the reasons provided at para [332] and, indeed, in actually resolving the conflict in evidence between Mr Singh and Mr Lynn, the Commission had previously addressed these events when providing a number of "examples" of concerning aspects of Mr Singh's evidence. As part of the "examples" provided, the Commission provided the following:
[320] In my opinion, there were many examples in Mr Singh's evidence which were very concerning and satisfies me, his 'spin' on the incidents of 1 August 2015, is simply not believable. I do not intend to record all of this evidence, but highlight some of the difficult to reconcile and implausible examples to demonstrate the point.
…
(6) In oral evidence (PN4875) Mr Singh claimed no one in the Team had done anything wrong. This is curious, given his evidence elsewhere apportioning primary blame on Mr Lynn and Mr Chawdhury and his own self absolution of any responsibility. This is also inconsistent with the statement of Mr Chawdhury that immediately after the incident, Mr Singh apologised for missing the warning light (Mr Fagir's 'error of judgment' submission). Why would Mr Singh apologise if he had done nothing wrong?
(7) There was considerable debate as to whether the Allawah incident was a 'near miss'. It is Mr Singh's case that as it was not a 'near miss', and he could not be guilty of not reporting it, because no one (the Driver, the Controller, or the Level 5 Investigator or anyone in the Team) had reported a 'near miss'. This is simply wrong. In addition, Mr Singh sought to rely on the 'Show cause' letter which described the incident as a 'safe working incident'. This is pure semantics. If a 'near miss' is not a 'safe working incident', it is difficult to imagine what else it could be. Just because no one told him it was a 'near miss', is not the point. Nor is it to the point that the Network Controller did not so describe it.
In my view, as an experienced Team Leader, it was incumbent on Mr Singh to report the incident whether he thought it was a 'near miss', or not. Incredibly, his answer to the evidence that he apologised at the time, was that he was sorry the Driver had reported it - another implausible invention. Mr Singh would not even have known at the time, that the Driver had reported it. This answer is indicative of Mr Singh being willing to say almost anything to justify nonsensical excuses.
In any event, listening to the audio of the radio call to the Network Controller, it is apparent the Driver was shaken and understandably confused by what he had just witnessed. The mere reading of the transcript of the radio call does not give a true impression of the emotional state of Mr Bonatesta. True it is that he is recorded as saying he did not know if it was a 'near miss', but reliance on this comment must be viewed in context, but more specifically with what Mr Bonatesta recorded a few moments later in the cabin, in the Stopping Pattern Report:
'Worker on track, near miss'.
So why didn't any member of the Team, being experienced POs, report the incident as a 'near miss'? In my view, the answer is obvious. It is to be found in the against interest evidence of Mr Lynn. The Team was waiting for a direction to stop work, and when that never happened after half an hour, they all presumed they had avoided getting into trouble and got away with it. This was perhaps an understandable human reaction, as no one was injured. However, in my view, this was a risky and reckless joint decision contrary to Sydney Trains' policies and the Network Rules and for which Mr Singh must bear the brunt of responsibility. This was because the incident occurred as a result of him failing to observe the warning light. It is reasonable to assume that if the Allawah incident had been handled differently, the Kogarah incident would not have happened and we may not have even been where we are now.
In my opinion, there is no substance in Mr Singh's case that Sydney Trains makes some distinction between an actual safety incident and a potential risk of a safety incident and this somehow minimises the seriousness of the incident. If this was the case, no potential risk to health and safety of the employees or the public, would ever be reported as a 'near miss', unless there was an actual injury or death. Such a proposition is patently unsustainable.
I also do not accept the argument that the Team were not required to report the incident, because the Driver had done so. This is inconsistent with the Team's conduct immediately after the incident and is difficult to accept when they would not have known the details the Driver had reported.
54 The Level 3 Report was also critical of Mr Singh's conduct in this regard. That Report thus relevantly concluded:
Similarly, when the first incident occurred at Allawah, the Sutherland Team Leader who was acting as the Up Lookout was apparently reluctant to report the incident as a Near Miss. This is understandable given that he was reportedly the person who missed the Warning Light. It is acknowledged that the PO has the responsibility to report any safety issues and each team member has an overall responsibility to do so; however, the Team Leader, as management's representative on site, is encumbered with a higher level of responsibility to report. It is likely that his reluctance, or at least his lack of initiative to report, influenced the PO/LO and other members of the team. It is the investigator's view that the Team Leader shares the largest portion of responsibility for not reporting the first Allawah incident, which would have potentially avoided the Kogarah Incident (see discussion below).
The "Sutherland Team Leader" there referred to was Mr Singh. The Report nevertheless went on to be further critical of the conduct of Mr Singh when it wrote:
The Allawah incident involved a train passing through an area with a Warning Light that was not being observed by a Lookout dedicated solely to this task. A worker was standing close to the track at the time, but could easily have been standing on the track doing work. Other workers were standing on/near an adjacent track where they were exposed to risk by being separated from their readily available safe place by the passing train.
This incident would appear to fit the definition of a "High Potential Incident", however it was not reported. It was reported as a separate incident following the subsequent Kogarah incident.
The gravity of these failings was only underlined by the observation of the author of that Report that the failure to report "would have potentially avoided the Kogarah Incident". It was a matter the author returned in the Conclusion where it was stated:
The work group missed a valuable warning opportunity for the method in which they were working. It is likely that if the Allawah incident had been reported and investigated appropriately, the work would have been modifies in such a way that that the Kogarah incident would not have occurred.
This part of the Report, it may be noted, was a matter which assumed importance in the proceeding before the Commission. The comments made in the Report formed the focus of at least some of the cross-examination of Mr Singh (Reasons at [190]) and was a matter again returned to in submissions advanced to the Commission by Counsel on behalf of Sydney Train Reasons at [266]).
55 The reasons of the Commission, it is to be recalled, expressly state that it relied "particularly on the evidence of the Level 3 Report": Reasons at [332]. Although it may well be correct to submit on behalf of Mr Singh that the Level 3 Report could be subjected to a number of criticisms or reservations, including:
the fact that it was the Commission proceeding which afforded a more complete opportunity for the parties to explore the facts in greater detail, including the opportunity afforded by accounts of the events being exposed to cross-examination; and
an opportunity for Mr Singh to provide an explanation, or at least a greater opportunity, to explain why he had left his position and went to say something to Mr Lynn,
there is no difficulty or unfairness in the Commission relying upon the Level 3 Report in circumstances where:
the Report itself was part of the material before the Commission, with both parties having the opportunity to address it findings and conclusions; and
the reliance being placed upon the Report by the Commission was (inter alia) as a further source of reference from which other and possibly different accounts of the events could be drawn, those differences being known to the parties and the subject of submissions before the Commission.
The reliance placed by Mr Singh, for example, upon the Level 3 Report was noted by the Commission - it found "most concerning of all, in a classic worst case of 'cherry-picking', … Mr Singh's 'enthusiastic embrace' of the Level 3 Report where it was critical of systemic failures, or of others in the Team, but his complete rejection of any comment or finding which was critical of him": Reasons at [320(1)].
56 One submission advanced on behalf of Sydney Trains in respect to the second Particular should be raised only to be rejected. The submission was that Mr Singh had admitted missing the warning light: Reasons [247]. But that, with respect, may say little as to:
whether the mere fact of missing a warning light justified dismissal or whether the dismissal for this reason was "harsh, unjustified or unreasonable" (Fair Work Act, s 385(b)) or was "a valid reason for the dismissal" (s 387(a)); or
whether the dismissal of Mr Singh for this reason could potentially have gone to whether he had been exposed to dismissal for "any other reason" (s 387(h)), namely "differential treatment".