WARNING Lookouts do no work other than look for, and give warning about, the approach of rail traffic.

Subeg Singh v Sydney Trains [2019] FWC 182 | Case summary | Zoe

[56] At screenshot 9.55.40 the following is shown:

(a) Mr Singh standing next to Down Local with his back to the Up Local, and not within sight of the warning light.

(b) Two Team members standing in the 'four foot' of the 'Up Local' close to the permissive signal.

(c) All Team members are walking in the direction of the City, meaning any train on the Up Local is behind them.

[57] At 9.55.50 the Team are in the 'four foot' of the Up Local but then the Team is not visible until 11 seconds later when they are seen in the 'six foot' between Up Local and Down Local, under the signal. They do not reappear.

[58] At 9.57.22 a train enters the screen on the Up Main, but disappears due to the curvature of the track. At screenshot 9.57.56 Mr Singh is seen standing to the left of the Down Local looking in the country direction of the Up Local. Three seconds later he turns his back to the Up Local and continues walking in the direction of the City. He is no longer visible at 9.58.04. Mr Polias rejected Mr Singh's claim that he was standing on the Up Cess and watching the warning lights for the Up Illawarra Local. What is reflected in the footage is that at no time, in the five minute period between leaving the platform at 9.53.26 until he is not visible at 9.58.06, is he in the Up Cess. Rather, Mr Singh is seen:

(a) standing near the signal utilities box at the end of the platform until 9:55:34, noting that there is a warning light at that location;

(b) walking up the 'six foot' closer to the Down Local, with his back to the Up Local. During this time, there is another warning light but that is in front of him and the light faces the city end, which means that given the direction he was walking, it was necessary to stand in front of it and look back to see the warning light;

(c) for the first time, turning to the side to look for traffic on the Up Local at 9:57:55AM.

[59] By reference to the photos, Mr Polias identified three warning lights. They all face towards the City on the Up Local. Therefore, a worker would need to stand on the City side of the warning light and looking back to it in the country direction.

[60] Mr Polias said that despite Mr Singh's evidence that the Team had taken 'a couple of track measurements...', the CCTV footage shows that at no stage during the period were members of Team seen doing so. Nor were any of the Team members seen on the Up Main (para 54 of Mr Singh's statement). Mr Polias claimed that at no time was Mr Singh standing where he had claimed in the 'four foot' of the Down Local. He was standing at 13.445km. Even if he had been standing where he says he was, he did not have MSD for the Up Main because of the curvature of the track, the Bridge pillars (now removed) and the platform. To ensure MSD, he needed to be 475 metres away (based on track speed of 85km). He was only 142 metres away. Moreover, even if he had walked over to the workers to save them from being hit by a train on the Up Main, he would not have had MSD to get them to a safe place.

[61] Mr Polias said that in any event, if he had to intervene to stop an unsafe situation by walking over to Mr Lynn, this was unsafe and inappropriate. Rather, he should have:

(a) Blown his whistle or pressed his sound horn, noting that from the CCTV footage, Mr Singh was wearing a sound horn over his left shoulder. Blowing the whistle or using the horn signifies to the workers that they must immediately stop what they are doing and move to a safe place. At Team briefings, work members are told that when the Lookout blows this whistle or uses the sound horn, this means they must move to the designated safe place. The designated safe place was the Up Cess as set out in the WPP.

(b) Once all the workers were in a safe place, Mr Singh should have informed the Protection Officer of his concerns about the unsafe practice. This is based on NPR711, page 3, point 8.

(c) A Lookout should not change their nominated Lookout position unless they do so from a safe place, and in consultation with the Protection Officer, who was Mr Chawdhury. This is based on NPR711, page 3, point 8.

(d) Even if his whistle was not available or not working for some reason, he should have remained at his post, in his safe place in the Up Cess, and used the sound horn to get the attention of workers.

[65] Mr Polias described his careful review of the Allawah and Kogarah CCTV footage and concluded that Mr Singh was neither performing Lookout safety, nor was he acting in accordance with the Network Rules. At 9.54.03 Mr Singh is seen departing the platform and entering the danger zone. All members of the Team are in front of him contrary to NWT310 and NPR711. He ceases to be visible at 9.58.06. At no time, in this 5 minute period, is Mr Singh taking up his position at the Up Cess, as he claimed. At screenshot 9.55.35, two Team members are standing in the 'four foot' in the Up Local. Mr Singh's function was the Lookout for the Up Local. He had his back to the Up Local and was walking away from, and with his back to, the warning light. He is then seen walking up the 'six foot' closer to the Down Local, with his back to the Up Local and without being able to see any warning light for the Up Local. He continued to walk toward to the City with his back to the Up Local. At 9.56.38 he walked over to the warning light in the 'six foot'. The train comes through at 9.57.29 on the Up Main. From 9.57.49 to 9.57.55, Mr Singh is seen walking towards the City close to the Down Local with his back to the Up Local and the warning light behind him.

[66] In respect to the Kogarah CCTV footage, Mr Singh had stated he had been in view of either two or three warning lights on the approach to the station. All of the warning lights for the Up Local face in the direction of City. Mr Singh is observed standing in the direction of one of the warning lights, but he was looking at the back of the light.

[67] Mr Singh had claimed that he and Mr Lynn had agreed that if he moved position, another Team member would keep Lookout and vice versa. Mr Polias said that even if this conversation occurred, this is not how the Team should have repositioned a Lookout. It was an unsafe practice because:

(a) A nominated Lookout is the designated Lookout and any change would need to be made in consultation with Mr Chawdhury, as required by NWT310 and NPR711;

(b) swapping Lookouts is completely unacceptable while walking on the track. A 'swap' can only occur if it is organised from a safe place: NWT310 (page 3);

(c) the Lookout must be in a position before work starts and no one on the track until the Lookout reaches their position: NPR711 (page 3 of 8);

(d) it was not difficult to see the warning light from the 'Up Cess'. If the person was on the correct side, the warning light would be clearly visible;

(e) Mr Polias commented on Mr Singh's overview (para 76) of what he said is shown in the footage:

(i) at 11.43.34 Mr Singh is not looking at a warning light;

(ii) at 11.43.49 there is no such thing as a mutual Lookout;

(iii) at 11.44.05 no one is looking at the warning light and it is unclear who is supposed to be looking out for whom;

(iv) for 20 seconds from 11.44.56, no one is looking at the warning light. Under the Network Rules all Team members must be in a safe place at least ten seconds before a train passes. It is not for Mr Singh to suggest how much time he had not looked at the warning light. A Lookout must maintain sight of the warning light at all times;

(v) At 11.45.21 Mr Singh stops to look at the warning light, but he should have been looking at the warning light at all times; and

(vi) At 11.45.51 no one is looking out at all and the Team is travelling into position to work.

(vii) At 11.45.52 no one is looking out while taking measurements. Mr Singh would have been able to see that the measurer was crouched down taking measurements and could not possibly be looking out.

[68] In cross examination, Mr Polias said that apart from Sydney Trains employees, contractors can work in the rail corridors, including as PO, so long as they have the necessary training. Mr Polias was referred to the five levels of protections; see: [49]. He agreed that where a Lookout is utilised, a critical component is to ensure an easily accessible, safe place is available. This requires the Lookout to follow NWT310 and NPR711 concerning Lookout working and the procedure for Lookouts. The only times when you can work on one line with adjacent live lines, is either when you have an easily reachable safe place, being the closest to the Cess area, you implement a safe method, or you have an authority to exclude rail traffic.

[69] As a Rail Safety Coach, Mr Polias must keep updated Network Rules and provide advice and training to upskill all employees. He is also required to access worksite protection plans. Mr Polias said a professional safety investigator, Ms Kerry Walker, conducted a Level 3 investigation of the Kogarah incident. He did not doubt her credentials or the quality of her report. Mr Polias confirmed he had seen the Level 3 Report at the time he provided a statement to the disciplinary investigation conducted by the Workplace Conduct Investigation Unit ('WCIU'). Mr Polias said his role in the disciplinary investigation was to provide clarification on the Network Rules and procedures and to observe the CCTV footage and make comment on it. Mr Polias said that POs are trained in parts of the SMO2-RG-3058RAA matrix and the potential risks of worksite protection.

[70] Mr Polias evidence was that the Supervisor's responsibility is to ensure that all the hazards are identified and controls put in place for the Team to work (safely). Once on the track there has to be a PO, not just a Supervisor. There must be clarity as to who the Supervisor is, but it is everyone's responsibility to get involved in a (pre-work) brief and understand the hazards and their controls on the job. He agreed it would not be usual to identify two Supervisors for one work group, unless one had to leave and the other was to take over.

[71] Mr Polias was questioned about the following comment in the Level 3 Report:

[72] Mr Polias accepted that the Level 3 Report noted:

you cannot keep a continuous Lookout in one direction, if you have got to be alert to traffic coming in the other direction;

the Network Rules do not specifically deal with 'moving' worksites (Mr Polias described it as a worksite over a large area. He said that different people will have different views as to whether it was a 'moving' worksite);

the Network Procedures do not address warning lights at all; and

Rail Safety Coaches do not seem to observe work groups in the field.

[73] Mr Polias also acknowledged that the Level 3 ReportReport made a series of recommendations about improvements to procedures, and a formal review was warranted. However, he did not accept that these deficiencies were relevant to Mr Singh's conduct because the role of Lookout had not changed and did not need improvement. He also believed that this was 'continuous work'; the worksite was at fixed locations, for which the Rules applied, to ensure the worksite was properly protected. Nevertheless, having analysed the role of Lookout on the CCTV footage and the various witness statements, Mr Polias believed Mr Singh breached the Rules and the procedures. These were very clear on the roles and responsibilities of a Lookout. In any event, the Team should not have used Lookout working on 1 August 2015.

[74] Mr Polias said that the Rules (NWT300 - planning work in the corridors) requires a safety assessment of the right level of protection, completion of documentation and a briefing for the workers. He agreed there were no procedures which preferences ASB being implemented over Lookout working. Mr Polias accepted that at least one of the Team had said they had habitually used Lookout working for measurements in the same area and the majority of such work is routinely performed under Lookout working. However, having walked the relevant section of track, he believed Lookout working should never have been used. A higher level of protection should have been used and various other teams (signal electricians and electrical main) had also suggested this level of protection.

[75] Mr Polias noted the Level 3 investigator had only interviewed the five members of the Team on the day, and she had based her comments of routinely using Lookout working for measurements from these interviews, not from interviewing anyone else. Mr Polias could not say why his view on the seriousness of Lookout working was different to the five experienced members of the Team. Mr Polias was asked to respond to the Level 3 ReportReport's observation that the level of quality assurance by Rail Safety Coaches is very paper-based and there was not much 'in field' observations. He said that with 250 POs it is difficult to get around to everyone and watch every job. Mr Polias said that in August 2015, overtime was not approved for Rail Safety Coaches, notwithstanding track measurements are usually performed on weekends (as here on 1 August 2015).

[76] Mr Polias said that the HRCLR requires a safety assessment if Lookout working is proposed. In some areas, there is a blanket prohibition on Lookout working, because there are MSD restrictions. He accepted that both Allawah and Kogarah were not prohibited areas, but there were requirements for MSDs and the location of safe places. He noted that warning lights are only for the Up Local.

[77] Mr Polias agreed a new maintenance memorandum was issued by Sydney Trains on 7 August 2015, which requires a WPP to be reviewed and countersigned. Mr Polias explained that it is the PO's responsibility to prepare the WPP and to check the Register. A qualified Line Manager who is supervising or planning the work, must also check the Register. There is no rule requiring the Lookout to check the Register and he understood Mr Singh was Lookout that day.

[78] Mr Polias agreed he had reviewed other of Mr Singh's WPPs (4) and accepted they were of a high quality. He actually gave the WPP for Kogarah a 91% rating. However, it was flawed because it lost 5% as the Team did not have MSD. Mr Polias conceded Mr Singh was not obliged to check the Register and the WPP does not require a reference to the Register.

[79] Mr Polias gave evidence of a new Automatic Track Warning System ('ATWS') which calculates MWT and MSD by means of sensor technology. This is new technology. It was trialed in 2016 and introduced in 2017 and requires further training and assessment. It is used on truck curvatures or where a Lookout has very minimum sighting distance.

[80] Mr Polias acknowledged that between 11AM and 1:30PM on Friday, 31 July 2015, a Local Possession Authority ('LPA') requiring seven days' notice and excluding all rail traffic, was issued for the Up and Down Illawarra Local between Wolli Creek and Hurstville and that measurements were taken at that time. He agreed LPAs are available on a regular basis every alternate fortnight on the Illawarra Main and Local lines.

[81] Mr Polias said that he first saw the Kogarah CCTV footage on the Saturday after the incident (8 August 2015) and only saw the Allawah footage three or four weeks before these proceedings, when preparing his statement. Mr Polias could not say why the Allawah footage is only a few minutes long and does not show the train actually coming along the Up Local. Mr Polias explained that his role in the investigation was to be asked by the WCIU in May 2016, to act as a subject expert and review the roles and procedures, vis a vis, the CCTV footage and witness statements. He made no recommendations on any disciplinary action.

[82] Mr Polias acknowledged that his critique from reviewing the CCTV footage was over a two and a half minute period which disclosed Mr Singh:

(a) turning his back to the usual direction of the traffic; and

(b) talking to Mr Lynn.

[83] Mr Polias did not accept that the footage shows that when Mr Singh moves, someone else is watching the warning light. In any event, some workers were in the danger zone. Mr Polias said that while he could not say if the workers had a discussion about swapping Lookouts, two things have to happen:

(1) the workers must move to a safe place; and

(2) any replacement Lookout must move to a position to be able to see approaching rail traffic.

[84] As to Mr Singh speaking to Mr Lynn, Mr Polias said that NWT310 makes clear that a Lookout cannot do any other work, because their primary role is to watch for approaching traffic and warn workers. Speaking to someone is a distraction, which is other work. While it is not spelt out, the training covers this and it is what Lookouts understand about their role.

[85] Mr Polias accepted that the Level 3 Report identified a certain tension between keeping a continuous Lookout and being alert to traffic coming from the other direction. However, this would only apply for work in bidirectional lines, say, in a yard. In this case, working on an automatic section of one directional lines, he had never witnessed a train approaching from the wrong running direction. He acknowledged that he had seen Lookouts turn very quickly, if they are startled by a train horn on another line. The Rules provide for a Lookout to have a break, at least every 60 minutes. He conceded that the Level 3 Report found an issue about this as to whether the 60 minutes includes moving location, or standing in one spot for 60 minutes. However, no one is ever prevented from taking a break, if they are fatigued at any time.

[86] Mr Polias explained how MWT is calculated. In this case, it should have been 25 seconds, but from the evidence, it was 15 seconds. The Network Rules are open to clarification. However, he could not see how you could interpret being alert for rail traffic from the wrong running direction, means you look away from your primary role of Lookout for 10 seconds. Mr Polias confirmed he had never told Mr Singh:

that a prohibition on doing other work, includes a prohibition on speaking to your Supervisor; or

that if you are going to relocate, everyone has to walk off the track, have a conversation with the PO, reach a decision and then move back to the track.

[87] Mr Polias was asked what difference would it make if the Level 3 Report had the Allawah incident occurring at 13.445, or where Mr Singh said it happened 150 metres before that point. Mr Polias accepted that Mr Singh relied on photos he had taken from a public area and not the later material taken from the front of an MTP review train. He accepted the CCTV footage does not actually show 13.445, as it is around the bend. Mr Polias did not go to point 13.445, but he went to (and looked under) the Bridge. He conceded that the CCTV footage ended at 9.59.58 and no worker is seen on the other Main at that time.

[88] Mr Polias agreed that if a worker was taking measurements on the Up Main (as contended by Mr Singh), when there is no Lookout, or even if there was, there would be no MSD, making it unsafe. Mr Singh had said:

[94] Around that time, Mr Bugeja reviewed the CCTV footage of the Kogarah incident and from his observations, he believed:

(a) Mr Singh was clearly visible at the top right hand corner of the footage;

(b) he was walking down the track toward Kogarah platform, with his back to the oncoming train when he was supposed to be operating as Lookout and he should be continuously facing in the direction of the oncoming train; and

(c) he appeared to be chatting, dawdling, leaning down to pick things up from the track, and was paying absolutely no attention to the direction from which he was supposed to be looking out for trains. His role was solely to lookout for trains and nothing else.

[95] Mr Bugeja said he was appalled by what he observed because:

(a) Mr Singh was not performing the role of Lookout, as he had been assigned;

(b) the way in which he was dawdling, chatting and leaning down to pick things up, suggested an absolute disregard for, and poor attitude to safety;

(c) the manner in which he was going about his duties suggested that this was his normal mode of operation, and the level of attention (being lack thereof) that applied to his function; and

(d) that Mr Singh should be so complacent when there had been an earlier incident that day in which he had missed spotting the train, and had only been alerted to it when the train sounded his horn, caused grave concerns not only for his safety, but for the safety of his Team. Mr Bugeja said 'I thought I would not feel safe having him being Lookout for me if I was one of the maintenance workers'.

[96] Mr Bugeja concluded that because there were two 'near misses' on the same day involving the same Team, a serious lack of compliance had been demonstrated by the Team. Various responses were initiated, including:

(a) Mr Singh's Rail Safety Card was removed and he was taken off rail safety work;

(b) the National Rail Safety Regulator was notified of the Kogarah incident;

(c) on 5 August 2015, a safety alert headed 'Lookout Working' was issued by the Director of SEQR;

(d) between 7 - 19 August 2015, the General Manager Network Maintenance, spoke to all Managers to discuss the agenda for the safety reset;

(e) a memorandum was issued to all maintenance staff which stated:

[108] As a result, the only warning was the train's horn, causing the Team to jump off the track into an unsafe area (the Down line). Mr Singh's response did not include an apology, expression of regret or contrition. He offered no commitment to be more careful and diligent. He only focused on making timelier hand signals to train divers; but this was not the issue.

[109] In respect to the Kogarah Incident, Mr Bugeja reiterated his earlier evidence and added that Mr Singh's implication that Mr Chowdhury was solely responsible, failed to demonstrate that he understands Sydney Trains' safety culture, which requires everyone to have responsibility for ensuring their own safety and their Team's safety.

[110] Mr Bugeja set out the chronology of events from the 5 August 2016 when he had advised Mr Singh he had confirmed the allegations and had formed a preliminary view that the appropriate disciplinary outcome was dismissal. Given the seriousness of the matter, Mr Singh was suspended on pay on 11 August 2016. On 15 August 2016, the Union responded to the allegations on Mr Singh's behalf. There was nothing in the response which changed Mr Bugeja's preliminary view, particularly as Mr Singh displayed no comprehension of the gravity of his conduct, did not accept any responsibility, or demonstrate any regret or contrition. Mr Bugeja said he considered Mr Singh's length of service and seniority, but this only added to his concern that his training and experience had meant Mr Singh should have known better. The matter was simply too serious to overlook. Sydney Trains cannot simply 'pay lip service' to safety. Mr Singh's dismissal was justified (he was paid 5 weeks' pay in lieu of notice).

[111] In response to Mr Singh's unfair dismissal application, Mr Bugeja:

(a) denied Mr Singh 'performed his role properly';

(b) said there was no wrong finding of facts;

(c) claimed Mr Singh completely misconceived the reasons for his dismissal when he said that he acknowledged the train driver with a hand signal;

(d) referred to the submission that Mr Singh was unreasonably and unjustly held responsible for the two incidents. This demonstrated a failure to appreciate the gravity or seriousness of his conduct or acknowledge any wrongdoing;

(e) rejected the assertion Mr Singh was the only member of the Team who was disciplined. All members of the Team had been disciplined, one of whom (Mr Chawdhury) had also been dismissed; and

(f) denied Mr Singh's breaches 'were relatively minor'. Mr Bugeja added that given Mr Singh's admission that he missed the warning signal which demonstrated a failure in his duty, he fails to accept or acknowledge the seriousness of any of his conduct.

[116] Mr Bugeja did not believe that Mr Singh was the Supervisor of the Team; rather, his nominated role was Up Local Lookout. Nevertheless, Mr Singh was the most senior member of the Team, as he was at Level 4.4 under the Agreement's classification structure, while the other PO4s were at Levels 3.1 or 3.3.

[117] In response to Mr Singh's claim that there 'is a striking and wholly unexplained contrast between the punishment meted out to him compared to the others, notably Mr Lynn,' Mr Bugeja said both Mr Singh and Mr Chawdhury were the most culpable, in failing to perform Lookout duties and failing to report the Allawah incident. As a result, both were dismissed. Mr Kolevski and Mr Ivanovksi were regressed in grade, as they were engaged in measuring and not performing PO or Lookout roles. While Mr Lynn was the most junior person with the least experience, he was the WGL. His role was to supervise the technical work being conducted. He was neither a Lookout nor the PO on shift. Mr Bugeja rejected Mr Singh's 'singling out' of Mr Lynn as effectively causing the Allawah incident, and commented:

(a) It remains that, although Mr Singh was not nominated Supervisor on the day, he was a Team Leader Level 4.4, and the most senior and experienced person on the shift;

(b) Mr Lynn had been at Sydenham for a very short period, whereas Mr Singh had worked at Sydenham for many years prior;

(c) Mr Singh also signed the WPP to acknowledge that he accepted and agreed with it;

(d) I do not accept that Mr Lynn caused the Allawah incident and it causes me concern that Mr Singh continues to not accept responsibility for the fact that he failed in the function of Lookout. Even if events occurred as Mr Singh suggests, and Mr Singh considered it necessary to intervene to stop an unsafe work practice, he should have deployed the various safe working method options available to him, such as shouting out, sounding his horn or blowing his whistle, rather than leaving his safe place and ceasing to perform the role of Lookout.

[118] Mr Bugeja denied prejudging the disciplinary outcome or directing the focus on Mr Singh, rather than the systemic problems identified in the Level 3 Report. He noted that all members of the Team had been referred for disciplinary investigation. As previously mentioned, the two investigations have different purposes and functions. Mr Singh was not 'singled out' or made an example of. Mr Bugeja reaffirmed his view that Mr Singh's reinstatement would pose a safety risk.

[119] In cross examination, Mr Bugeja said he was satisfied with the quality and competence of the disciplinary investigation and the Level 3 Report. As he did not initiate the Level 3 Report, he did not know why Sydney Trains used an external person (Ms Walker). He was satisfied Ms Walker carried out the investigation effectively, and while he did not independently assess the facts and circumstances she had reviewed, he took her findings into account.

[120] Mr Bugeja agreed that there was a difference between an employee wilfully breaching a safety rule and a breach due an error of judgment. Mr Bugeja said he did not know the ONRSR had produced a report, until Mr Singh included it in his evidence. While he was not provided with the Report, he understood the Director of SEQR had been given a copy.

[121] Mr Bugeja did not accept that the case against Mr Singh had changed from the case put to him in May 2016. He now understood that although it was common practice to immediately remove Rail Safety Cards from employees involved in a safety incident, this did not occur at the time. He did not know why this was the case.

[122] Mr Bugeja claimed that on 1 August 2015, Mr Singh was Team Leader, there were two Supervisors - one for protection (Mr Chawdhury) and one taking the measurements (Mr Lynn). However, he could not point to any Sydney Trains document which provided for two Supervisors on the same job. Mr Bugeja could not say if the role of WGL on shift might encompass supervision of the technical work. It extends to other duties. Mr Bugeja believed that the concept of Supervisor encompasses Team Leader and WGLs. He agreed that Supervisors:

(a) deliver the pre-work briefing in conjunction with the PO;

(b) supervise the work; and

(c) must tell workers about the risks and hazards of performing the work.

[123] Mr Bugeja accepted that there must be clarity as to the Supervisor, because if there were multiple Supervisors it could lead to ambiguity (in authority). On the day in question, Mr Lynn was required to fulfil these functions.

[124] Mr Bugeja said Mr Daniel Kinder had planned the work that day, but he did not know if Mr Kinder checked the HRCLR. He did not consider this in the disciplinary investigation. Mr Bugeja added that despite Mr Singh asserting since mid-2016, that there had been a worker on the Up Main on the day, he was not aware of it, did not consider it or form a view as to whether Mr Singh was lying. He had relied on the Level 3 Report and the fact there were no work orders for the Up Main. Mr Bugeja did not believe the Team worked short on that day.

[125] Mr Bugeja denied his evidence he had been carefully chosen to identify matters going against Mr Singh and left out any matter which would suggest Mr Singh's conduct was less serious. Mr Fagir then took Mr Bugeja to the matters it was said had been left out, such as:

(a) Mr Lynn's 8 years of experience;

(b) all the Team members were qualified PO4s and very experienced in safe working;

(c) the Level 3 Report had indicated that the procedure for the Lookout working modes makes no explicit reference to mobile worksites, which Mr Bugeja said was the case on the day of the incidents;

(d) the expectation of what 'continuous' means was not clear as to the requirement for the Lookout to keep a 'continuous Lookout for the approach of rail traffic'. Mr Bugeja said he had no concern about this because he believed Mr Singh did not undertake the role of Lookout by continuously watching out for trains. That was in breach of the Rules;

(e) ambiguity arises because the procedures require a Lookout to be alert to traffic coming in the opposite direction;

(f) the Rules do not deal with warning lights. Mr Bugeja explained that warning lights are not a consideration when calculating MWT and sight distances as Lookouts must always have a MSD. Warning lights are an aid. As to the Kogarah incident, there was no MSD and the Lookout working should not have been used;

(g) Rail Safety Coaches and the Team Manager do not conduct regular safety observations/interactions on Lookout working (6.3.4);

(h) observations are rarely conducted, if ever, on track measurements worked in the field. It is most frequently scheduled for weekends (6.3.5); and

(i) Sydney Trains had imposed long periods of no overtime for management staff.

[126] As to (h) and (i) above, Ms Walker had concluded:

[131] Mr Bugeja understood that all but one of these recommendations had been accepted. The rejected item (13) was 'Redefine the ratings of incidents based on a potential outcome rather than actual outcome'. Mr Bugeja conceded that as a consequence of the incidents, there had been a revision of the practices in relation to Lookout working to address the above recommendations. He disagreed there was 'a lot of improvement required'. There was some improvement and some clarity needed.

[132] Mr Bugeja said that the WPP form now refers to the HRCLR. It did not do so prior to August 2015. A further change was made to require a second person to check the Register 'in addition to the Line Manager'. Mr Singh, as Team Leader, was required to consult the Register, per Operational Procedure 6.13 at the time, or at least to have asked whether the Register had been checked. Mr Bugeja said that he was not aware of anyone asking Mr Singh these questions. Mr Bugeja did not know if Mr Kinder, as the planner of the work, or Mr Lynn as the Supervisor, had checked the Register. Mr Bugeja understood that there was no express policy or rule requiring all Team members to understand the WPP, but it was implied that workers have an opportunity to comment on the WPP.

[133] Mr Bugeja reaffirmed his view that the Network Rules require that if there is inadequate MWT or signalling distance, Lookout working is not permitted. He understood the areas in question at Kogarah and Allawah are in this category. Mr Bugeja was asked to comment on Mr Polias' evidence that it is permissible in areas like Kogarah and Allawah, provided the PO conducts a safety assessment and concludes that Lookout working is appropriate. He said that this means other forms of protection must be put in place. Mr Bugeja believed that a higher level of protection should have been used. This was why, among other reasons, he believed Mr Singh should have refused to engage in, or speak out against, Lookout working.

[134] Mr Bugeja was asked about an LPA in place in the same areas the day before 1 August 2015. However, the LPA was unnecessary as the management was at a barbeque. He could not confirm that to be the case and had taken no steps to do so, as he considered it irrelevant. He denied he was not interested in anything other than laying the blame on Mr Singh and Mr Chawdhury. In any event, Mr Bugeja said that the PO could have arranged for ASB. He agreed it was not Mr Singh's responsibility for doing so.

[135] Mr Bugeja was asked to comment on the WPP for that day. He said there was no problem with the way it had been completed, if it had been used for the appropriate track. He said there were multiple site Supervisors and Team Managers identified, which could not be explained. The Up and Down Cess had also not been identified. Mr Bugeja understood a Rail Safety Coach had reviewed the WPP and graded it at 91% according to the applicable criteria. However, Mr Bugeja is not responsible for the Coaches, although he knows what they do.

[136] Mr Bugeja was concerned that the Level 3 Report identified a culture of civil maintenance conducting track measurements under Lookout working. He inquired into this and found that, in this instance, that was true (as was claimed by some of the Team). However, Lookout working was not the only method of protection used for the track inspections in that area. There was a specific allegation that Lookout working should not have been used, as there was insufficient MWT and MSD.

[137] Turning to the Allawah incident, Mr Bugeja said that the evidence in the Level 3 Report was that someone jumped out of the path of the train, but the train driver described it somewhat differently.

[138] When Mr Bugeja was asked about Mr Singh's comment, 'I saw something unsafe and I moved to intervene', he said he should have maintained his protection, and alerted the PO or the other staff by blowing the whistle or horn. Mr Bugeja accepted that there was no rule which required that course of action. Neither Mr Singh, nor any member of the Team had reported the incident as a 'near miss'. They all had a responsibility to do so. Mr Bugeja could not say if Sydney Trains had reported the incident at Allawah to the ONRSR. Mr Bugeja was asked why he referred in his letter of 7 April 2016 to the Allawah incident as a safe working incident and to the Kogarah incident as a 'near miss'. He said they were both safe working incidents. He was referred to:

Mr Lynn's view that Allawah was not a 'near miss';

the train driver's comment to the Network Controller 'I don't know if I consider it a near miss'; and

the Network Controller did not treat it as a 'near miss', largely based on the driver's account.

[141] Mr Bugeja said the following propositions that were put to him were incorrect:

(a) he had no real interest in getting to the bottom of what happened on 1 August 2015;

(b) he had decided 'very early' that a 'couple of heads had to roll';

(c) he had no interest in investigating any management failures; and

(d) that it was all a 'blame game'.

[142] Mr Bugeja was questioned as to whether the Up Cess was an easily accessible safe place. If the worker was 14 seconds away, there was a doubt as to whether the Up Cess was a safe place. In any event, Mr Bugeja said that the calculation had to be planned in advance. Mr Bugeja said that as a Lookout and as a PO, the Lookout should have warned the workers to remove themselves from the track. Mr Bugeja agreed that the premise which underpins the calculations - meaning the Up Cess was a safe place - cannot hold, if a worker was actually on a Main line, as opposed to a Local line. He accepted that it was not clear that the Up Cess was in fact the safe place for the purposes of a worker on the Main line at Allawah. Mr Bugeja contended that the workers should not have been on the Main line and to remove them from danger they needed to be placed immediately in a safe place. The Down Local was protected by a Lookout, but the Up Local should have been protected by the Up Illawarra Lookout.

[143] Mr Bugeja said that if he put himself in Mr Singh's position, he would have remained in the Up Local looking at the warning lights and having 20 seconds to advise staff to get off the track. He agreed he did not know what the exact number of warning seconds were. Mr Bugeja's understanding was that Mr Singh was using the warning lights to protect staff. This was not a contravention of the Rules at the time.

[144] As to the disciplinary investigation, Mr Bugeja understood that this was always conducted by the WCIU. The rationale for this is that if a safety investigation identifies causal factors, a call is made as to whether there is a case to answer. Mr Bugeja denied he had directed the investigation to particular conclusions or assumptions. He also accepted the Level 3 Report raised questions about Lookout working and 'moving worksites'. He accepted that breaches of the Network Rules was a question for the investigator, notwithstanding that he had identified a history of safe working breaches over the last 10 years at Sydenham Civil. He did not name Mr Singh specifically. He denied he was putting information in the memo to the WCIU to ensure that Mr Singh and Mr Chawdhury were found guilty of safety breaches.

[145] In questioning about the CCTV footage at Kogarah, Mr Bugeja said that he had observed Mr Singh with his back to the direction of ongoing trains for the majority of the time. Mr Bugeja denied that the Rules changed about reassessing changed work locations after the 1 August 2015 incident. He agreed it was more explicit in the later version of NWT310 when it now reads:

[148] It was Mr Bugeja's evidence that to ensure MSD you can have two Lookouts and the MSD increases by five seconds. He did not agree with Mr Singh's description that they had two Lookouts when one is relocating. The Rules refer to an additional Lookout, but it is not meant as an alternative Lookout - it is an intermediate Lookout to increase MSD.

[149] Mr Bugeja understood that the investigator had been provided with the Kogarah CCTV footage conducted by Service Manager, Ms Marian O'Connell who formulated the allegations against Mr Singh. While not expressly alleging that Mr Singh had failed to maintain a continuous Lookout, by turning his back on the warning light, its essence was captured by the allegation that he failed to take care of the workplace health and safety laws, by allowing work, despite the lack of MWT and MSD. Mr Bugeja agreed there was no specific allegation that Mr Singh was dawdling, chatting or leaning down with absolute disregard for safety. However, Mr Bugeja claimed he was 'appalled' by what he saw on the CCTV footage: Mr Singh's conduct and Mr Chawdhury walking in the danger zone. He did not see anything to show the other workers were concerned with Mr Singh's conduct.

[150] Mr Bugeja acknowledged the Level 5 Report conducted by Team Manager, Mr Tom Willmot recommended coaching and investigation into Lookout working rules and sighting distances. Mr Bugeja agreed he was the only person associated with the issue, who had claimed to have been appalled by what he saw, even though others involved in the investigation had access to the CCTV footage. As he had been concerned that no one else in the experienced Team had spoken out, and they had been disciplined accordingly. Mr Bugeja said it was an 'oversight' that he did not question the allegations about the Lookout issue. He had a concern with the way the Team worked, when two incidents occurred within two hours.

[151] Mr Bugeja was taken to each of the recommendations of the Level 5 investigation and was concerned by them and later queried how his expectations of safe working appeared so different to the Team. The fact that quality assurance in the field was so lacking, did not remove the onus on persons in the field to comply with the Network Rules. A number of steps were subsequently taken to ensure a similar incident does not happen again, including coaching, improving briefing workshops on corridor safety systems and to ensure the appropriate protection methods.

[152] Mr Fagir took Mr Bugeja to his evidence as to why Mr Lynn had been treated differently to Mr Singh, noting particularly Mr Singh's consistent refusal to accept any responsibility for the incidents or offer any contrition. Mr Bugeja rejected Mr Singh's claim that as he was comfortable with Mr Chawdhury's knowledge, experience and qualifications, he had not questioned him at the time about the WPP. Mr Bugeja agreed that Mr Chawdhury was a PO4 and an ASB Trainer. He was experienced on the section of track, and was the Supervisor on the day. All the other Team members made the same point about Mr Chawdhury's role, including Mr Lynn who said he:

[166] Mr Singh attached to his statement a number of photos said to identify the location of the incident and the positioning of the workers when he took up his Lookout position, standing on the Up Cess and watching the warning lights for the Up Local, as he had understood the Team would be taking measurements on the Up and Down Locals only. Although he believed his position was well-placed, he had a limited view of the Up Main due to the Bridge and curvature of the track. Mr Singh claimed he had looked back briefly as the Team was behind him. Shortly after, he noticed two workers taking measurements between the Down Local and Up Main lines. Mr Singh said that as this was wrong and unsafe and the protection was not focused on Up Main, which was limited in any event, he decided to immediately intervene. He moved to get a better view of the Up Main and to advise Mr Lynn to stop measurements on the Up Main. At that point, Mr Kolevski was on the Up Main. Mr Singh said he told Mr Lynn 'Andrew please stop taking measurements here. It is not safe, and you don't have the design.' As he said this he looked back to the Up Local, noticed the warning light was out and heard the train horn as it came on the Up Local. He acknowledged the driver by raising his right arm. Mr Singh denied 'anyone jumped out of the way of the train'. Although the workers were on the Down Local and they were at risk if a train came on the Down Local, Mr Singh believed that although the situation was unsatisfactory, he had no option but to act immediately in respect to the seriously unsafe situation with Mr Kolevski being on the Up Main. The risk was less because Mr Chawdhury was Lookout on the Down Local and if a train had come, the workers could have moved to the 'six-foot' between the Up and Down Locals.

[167] Mr Singh continued with his version of events. After the incidents, as the Team were gathered on the Up Cess, Mr Chawdhury advised that the Signal Controller had called as the train driver had complained that the Lookout did not respond to the horn. Mr Singh disputed this and said he gave him a hand signal. As they were waiting for the Signal Controller to call back, Mr Singh claimed he said to Mr Lynn:

[170] Mr Singh said that when the Team moved to Kogarah, there was no change to his role as the Lookout for the Up Local. The train which nearly struck Mr Kolevski was travelling on the Down Local. Mr Singh responded to the Kogarah incident allegation similarly to his comments concerning the work at Allawah. In addition, there are three warning lights around Kogarah which he had in view and which provided 30-35 seconds' warning time. There were also manholes and platforms on the Up Cess around Kogarah Station.

[171] Mr Singh referred to Mr Bugeja's statement as 'fresh allegations' arising from what he had observed on the CCTV footage. Mr Singh saw the footage on the same day in the afternoon when the Depot Manager and the Team Manager showed it to him. Mr Singh claimed neither of them commented on his actions. The only comments they made were about the conduct of Mr Chawdhury and Mr Kolevski. The Level 5 Investigation commenced and the Depot Manager told Mr Wilmott, the Team Manager, to immediately interview Mr Lynn, Mr Chawdhury and Mr Kolevski the next day (Sunday).

[172] Mr Singh said the CCTV footage was not provided to him or the Union during the investigation, and there was nothing in the allegations which referred to him turning his back on the oncoming trains, and no mention of the CCTV footage. He therefore had no reason to mention it during the investigation. Mr Singh had now closely reviewed the CCTV footage and the comments of Mr Bugeja, Mr Aitchison and Mr Polias, none of whom, he noted, were present on 1 August 2015. Mr Singh agreed the CCTV footage shows times when his back is turned from the direction of oncoming trains. However, had he been asked during the investigation, he would have explained that he and Mr Lynn had agreed that he and the Team members would keep Lookout when he moved from one position to another and vice versa. He was also travelling on the 'four foot', rather than the Up Cess, which would have limited his site of the warning lights. Rather, he could see multiple warning lights and platforms and manholes. Mr Singh offered a detailed account of what had occurred by reference to the CCTV footage which I do not reproduce, but which I have myself compared to the CCTV footage.

[173] Mr Singh observed that his Rail Safety worker authorisation was suspended on 7 August 2015 and the disciplinary process was completed 16 months later. During this time, his income was about half of what he had previously earnt. On 10 August 2015, he was notified of an interview conducted by the ONRSR.

[174] Mr Singh said he was not asked to participate in the internal reviews which led to the Level 5 and Level 3 Reports. He did not see the Level 3 Report until November 2017, when it was produced under subpoena. Mr Singh said that at all times during the investigation, he relied on the advice and representation of the Union, including its advice not to participate in a disciplinary interview.

[175] Mr Singh referred again to his 34 years of service with the respondent. He loved his job and was very proud of his long and unblemished service. He seeks reinstatement. He believes that given his age, his ethnic background and Sikh faith, he has virtually no chance of being able to find full-time employment again; let alone on a salary he had with Sydney Trains. He claimed he had told the investigation that he was fully aware of the gravity of the Kogarah incident (note: not his involvement at Allawah) and was fully prepared to do whatever was required for him to return to full duties.

[176] In a second statement, Mr Singh responded to the evidence of Sydney Trains as follows. In respect to Mr Lynn's statement, he said:

(a) Mr Lynn was the WGL and the boss on 1 August 2015;

(b) he had never heard of a Technical Supervisor, or there being to two Supervisors responsible - one for technical matters and the other for the rest of the work;

(c) he had never worked as part of a Team with multiple Supervisors;

(d) he was not the Team Leader on 1 August 2015 and had never been a Team Leader, while acting as a relief worker;

(e) Team Leader is the leader of staff in the Depot. He was not Mr Lynn's Team Leader at Sutherland. Mr Ron Kirk was the Sutherland Team Leader;

(f) Sydenham and Sutherland are not the same Team and workers do not work in the same area. Track changes are usually sent to their respective depots;

(g) Mr Lynn was an additional Lookout on 1 August 2015, despite undertaking some track measurements. Most measurements were done by Mr Kolevski and Mr Ivanovski;

(h) Mr Lynn was giving all the instructions that day and he had eight years' experience at Sydney Trains;

(i) in his experience, the Lookout only blows a whistle when the train is approaching, not as a warning to workers when no train is approaching (Allawah);

(j) he denied Mr Lynn had asked him to report the Allawah incident. The incident had already been reported by the driver. If Mr Lynn wanted the incident reported, he could have done so himself;

(k) he rejected Mr Lynn's claim that he had trouble understanding him; and

(l) Mr Lynn had never told him he felt unsafe working with him.

[177] In response to Mr Bonatesta's statement, Mr Singh:

(a) denied that a worker was running from the Up Local as the train approached. The most immediate threat to workers was from a train on the Up Main;

(b) accepted that the photographs he had taken may not have been where the Allawah incident occurred. This was the only access he had to take the photos many months after the incident;

(c) claimed that if Mr Bonatesta was 'shaken up', he should have stopped work and sought relief; and

(d) did not recall the train stopping or going very slowly. There is no footage of the train's movements.

[178] In response to Mr Bugeja's statement, Mr Singh:

(a) claimed that different workers were watching for traffic while he was moving;

(b) agreed that although he was interviewed by Ms Walker, she did not mention it was a Level 3 Investigation. His understanding was that only internal persons conduct such investigations;

(c) said he answered all Ms Walker's questions truthfully and to the best of his knowledge and belief;

(d) said the Level 3 Report reference to 'less than adequate consideration of at risk behaviour' is a finding not based on an understanding of what actually happened at Allawah;

(e) rejected Mr Bugeja's reference to his failure to report the incident; and

(f) believed the incident was not reported by anyone as a 'near miss'.

[179] In respect to Mr Polias' statement, Mr Singh:

(a) now accepted the Allawah incident occurred at location 13.445;

(b) for reasons earlier stated, he denied his actions were unsafe and inappropriate. His priority was the danger to workers on the Up Main and there were no workers on the Up Local;

(c) claimed that in the 17 minutes of CCTV footage there were two non-stop, fast trains on the Up Main and none on the Up Local;

(d) denied that there was insufficient MSD on the Up Main - there was no protection, which is why he intervened; and

(e) believed blowing his whistle may have put the workers at risk.

[180] Mr Singh set out again in detail his observations of what the CCTV footage shows, which I do not reproduce here as I intend to rely on my own frequent reviews of the footage.

[181] In cross examination, with the assistance of a Punjabi interpreter, Mr Singh claimed he had a clear recollection of the events of 1 August 2015, despite the passage of three years since the incidents. He maintained that in both incidents he had done nothing wrong. There was no 'near miss' in the Allawah incident.

[182] Mr Singh accepted he was interviewed for the Level 3 Report, but did not know Ms Walker was conducting a Level 3 investigation which was usually done internally. He agreed he had the Level 3 Report around two months before preparing his statement and he had read the Report twice. He accepted that his case rested principally on the Level 3 Report which supported him (in some places).

[183] Mr Singh did not agree with Ms Walker's finding that he had engaged in less than adequate behaviour. He agreed with everything in the Level 3 Report, except where it was critical of him. He accepted that Ms Walker commented on the roles and work of each member of the Team. He understood the reference to the Team Leader in the Report was a reference to him and where it quotes him in his interview as being the Down Lookout, he claimed this was incorrect and must have been 'a slip of the tongue'. Ms Walker later quoted him as saying he was the Up Lookout.

[184] Mr Singh was also taken to his interview with the ONRSR around 19 August 2015 which dealt mainly with the Kogarah incident. He had read the report of the ONRSR, after he filed his statement on 19 July 2018. He had also read the transcript of his interview, and contended it was not accurate.

[185] Mr Singh said the Union had prepared his response to the 'Show Cause' notice after speaking to him. The Union produced a draft and he had agreed to it. The Union later told him they could not take his matter further and he then spoke to a private solicitor. Mr Singh accepted that he was offered an opportunity for an interview, with a support person, during the disciplinary investigation. However, on advice from the Union around 10 June 2015, he declined to attend an interview, despite participating in interviews during both the Level 3 investigation and ONRSR processes. He believed he had said everything he wanted to say in the earlier response prepared by the Union and he was satisfied that he had nothing further to add. When he received the letter recommending his dismissal, the Union had prepared a second letter and he was happy with its contents, 'at the time'. He now believed he should have had legal advice in preparing his written responses. The Union had prepared this unfair dismissal application. Similarly, he was happy with the application's contents. Mr Singh insisted that in all his responses and in his evidence, he was truthful and accurate.

[186] Mr Singh was taken to the Position Description ('PD') for Team Leader Track and Structures - his position at the time of his dismissal. He understood his duties and responsibilities under the PD and accepted them. Specifically, he understood:

there was a shared responsibility for ensuring safety;

Sydney Trains' culture emphasised safety compliance and probity;

he had other Team members reporting to him and was responsible for ensuring and leading the safety of the Team;

he was required to undergo periodic safety induction;

he had a responsibility for ensuring contractors knew and applied their safety obligations;

he had a duty to implement plans for safe working and communicating safety goals to the Team;

he managed the SWMSs (Safe Work Method Statements) and ensuring staff adhered to WPPS and safety policies and procedures;

as a PO, he was very familiar with all Sydney Trains safety policies and procedures;

he had responsibility to conduct regular Toolbox meetings and Team briefings.

[187] Mr Singh confirmed that as a PO4 he had undertaken refresher courses every two or three years - the last in September 2014. These were designed to keep him up to date with the Network Rules and procedures relevant to his position. He had a detailed knowledge of the documentation relating to track and structures. Mr Singh agreed he had attended a number of safety training courses during his employment, including completing the requirements for PO4 in 2001, Team Leader training in April 2007 and training in Safety Management Systems and Signalling. The PO4 position must also demonstrate experience in leading and supporting work groups, including instruction to subordinate staff. He also had an obligation to promote an ethical approach to dealing with workplace matters and be an example of upholding Sydney Trains' values and ethics through update briefings. Mr Singh was also aware of the 'Safety responsibilities, authorities and accountabilities, RAA Matrix' document.

[188] Mr Singh was referred to a document setting out the senior management positions in Sydney Trains where there is reference to Line Manager. He agreed this was the only position that fitted his role as Team Leader Track Instructor. Under this document he was considered to be a Line Manager. He understood that from time to time he was a Line Manager. However, he believed there would only be one Line Manager at any particular time. He accepted that a Line Manager could be a Team Leader, Supervisor, Manager and a person is always a Line Manager, no matter what other role is being undertaken. Nevertheless, Mr Singh said that he had never heard of Sydney Trains advertising for the position of Line Manager. By reference to Systems Procedures O2 Safety Responsibilities, Authorities and Accountabilities, which Mr Singh had seen and read, he agreed it dealt with each manager's roles' safety accountability, including communicating safety responsibilities to workers at site inductions and ensuring safety resources are available and operational. He now agreed that this document references Line Managers.

[189] Mr Singh said he had read the Code of Conduct many times. He understood that he was required to familiarise himself as both a frontline employee and middle management, with Sydney Trains' policies and comply with them and prioritise safety in the workplace.

[190] As to the Kogarah incident Mr Singh accepted the Level 3 Report identified the five members of the Team and their substantive roles. While maintaining his primary role was to act as Lookout for the Up Local, he was the most senior employee in terms of experience on that day. He conceded he was paid the highest of all the employees (at 30 June 2015 - $161,959, including overtime). The base salary was $83,000. However, on 1 August 2015, he was under the instructions of the Supervisor and PO. Despite the Level 3 Report identifying confusion that day as to who was the Supervisor, he had no doubt it was Mr Lynn. Mr Singh was taken to Ms Walker's comment at para 67 at page 38 where she said:

[193] Mr Singh had told Ms Walker that Mr Ivanovksi and Mr Kolevski were doing the measurements and he was the Up Illawarra Local Lookout. Mr Lynn was recording the measurements. Mr Chawdhury was the PO and the Down Local Lookout. It was Mr Chawdhury's primary role to plan and protect the workers. Mr Singh claimed it was Mr Chawdhury alone who decided on the Lookout work. He had not objected at the time, because for 33 years that was how it was done in this area. Mr Chawdhury was required to identify the number of Lookouts at their location and MWTs. He accepted that the Team was experienced, as three of the Team were PO4 and one other was a PO4, but had been regressed to PO1. Mr Singh had been a PO4 since 2007. It was Mr Singh's evidence that no one in the Team objected to the WPP because the Network Rules allowed Lookout work for this area. Lookout working had always been utilised for this purpose. When asked about Sydney Trains' contrary view, Mr Singh still believed Lookout working was appropriate, if managed properly.

[194] Mr Singh agreed he had signed the WPP and had been briefed about it, without questioning it. This was because he relied on Mr Chawdhury's knowledge of the area. The Lookouts were to 'Bi di', meaning bi-directional on Up Lookout and Down Lookout. Mr Singh continued to maintain the references in the WPP to 'Site Supervisor or Team Manager, Kane, and Andy and Subeg' were not there when he signed the WPP. The WPP also referred to two warning methods: 'Whistle/horn and voice/touch', and he had a whistle and horn that day, as did Mr Chawdhury. The document also referred to MWT calculations (15 seconds) which is a requirement under the Rules (NWT310). Mr Singh agreed he had undertaken these calculations many times before. The track speed was 100km an hour and the MSD was 420 metres. Mr Singh agreed Mr Chawdhury's calculations were very conservative, because an additional Lookout changes the calculation by adding more time.

[195] In respect to the Union's response to the 'Show Cause' letter, Mr Singh said his version of events demonstrated that the Team had been working safely, according to the WPP. However, the WPP records the need for two Lookouts, while he had claimed there were three - himself, Mr Chawdhury and Mr Lynn, (when he was not recording measurements). Mr Singh accepted he had told the ONRSR investigators that there had been no need to refer to the diagrams in the WPP, because all the workers were experienced and familiar with the track.

[196] In his ONRSR interview, Mr Singh was asked 'should a train come, how do you warn workers?' He answered 'I have at least two warning devices, one hooter (can be heard up to 2-3 km away) and one whistle.' Mr Singh claimed his answers were short because he was shocked by this interview and intended to give short answers as he 'knew that they were plotting against me and I did not do anything. I was not involved in the Kogarah incident and Allawah, and they send regulators' (the highest authority).

[197] Mr Singh was questioned on the Level 3 Report and Ms Walker's handwritten notes of his interview. Mr Singh agreed that he had told Ms Walker that no one had asked any questions about the WPP and he 'signed the papers' in the briefing on 1 August 2015. Ms Walker had found:

[199] Mr Singh maintained that there were three Lookouts and it was not against the Rules, because they had a local arrangement. Mr Singh then claimed Mr Chawdhury and Mr Lynn were the nominated Lookouts and he was the additional Lookout. It was noted that Mr Lynn and Mr Chawdhury, had neither a horn nor whistle.

[200] Mr Singh insisted he was not a Line Manager and he was not the Supervisor on 1 August 2015. At the time, Mr Kinder was the Line Manager who was required to consult the Register when planning the work. Mr Singh was asked to reconcile his evidence that at the time he signed his statement he had not read the Level 3 Report, with his other evidence that he had seen the Report when reading Sydney Trains' evidence. He agreed his statement evidence was incorrect, and his recollection may not have been very good.

[201] Mr Singh reiterated that Mr Lynn was the Supervisor, although he had only been at Sydenham for eight weeks, but he (Mr Singh) previously worked in the area for a long time. He accepted it was not surprising that he was considered to be one of the leaders of the Team. However, he and Mr Chawdhury were the additional Lookouts and Mr Lynn was the Supervisor and the Lookout. Mr Singh conceded that Mr Chawdhury never said in the briefing that day, that he was an 'additional Lookout'. Mr Singh further accepted that he was not an 'outsider', because he was familiar with the practices and local arrangements around Sydenham. Mr Singh conceded that his claim of questioning of Mr Chawdhury about checking the Register, was not mentioned in any of his statements or interviews, or in his 'Show Cause' letter. Mr Singh said he recalled this exchange with Mr Lynn when preparing for his legal action, notwithstanding it was a highly relevant matter when his job was in jeopardy and he had never mentioned it before. Mr Singh claimed that it was not his responsibility to check the Register. It was Mr Lynn's, Mr Chawdhury's and Mr Kinder's responsibility. Mr Singh agreed that MWT and MSD were very important issues. He was comfortable with Lookout working, as he had been doing this for 30 years. He said that he, Mr Lynn and Mr Chawdhury had reached an agreement as to the Lookout working and that Mr Lynn had said:

[204] Mr Singh claimed that no one from Sydney Trains ever told him that the Lookout method should not be used for track measurements, despite knowing that if there is no MSD/MWT, Lookout working should not be used. He accepted that as a PO4, he was completely on top of the Network Rules, including about details of MWTs. It was put to Mr Singh that Mr Lynn could not have been the primary Lookout if there was additional MWT and he could not have been looking both ways and doing track measurements. He answered that it was Mr Lynn's responsibility to see the oncoming train and take the workers out (of danger). He agreed Mr Lynn would have to be in a position to give a 15 second warning. Mr Singh acknowledged that NPR711 insists that 'Lookouts do not work other than to look and give warning about the approach of traffic' and they must have two independent forms of effective communication with the workers. It was noted Mr Lynn had neither a horn nor whistle.

[205] When Mr Singh was asked why the WPP stated two Lookouts, not three, he replied there was no Rule to prevent it. He agreed that an additional Lookout must be able to be seen by the primary Lookout. If there was a curved track, this could not happen. Mr Singh was asked about the Rule which requires a Lookout to keep a continuous lookout for the approach of traffic and that Mr Lynn could not have 'continuous' look out because he was recording track measurements.

[206] Mr Singh was invited to change his version of events in respect to the Allawah incident after two and a half years and having viewed the CCTV footage. He declined to do so. He agreed he had prepared his statement after reading the Level 3 Report, but he did not take into account the CCTV footage. He had since reviewed the footage, two or three times, and 'didn't find anything which was wrong'. By reference to the photos of where he said the incident took place, he claimed to have identified where each Team member was placed. He further claimed measurements were being taken which were unsafe and without design on the City side 30 metres down the track. He agreed the photos were taken from the Allawah end of the platform looking towards the City. He was located in the left hand side facing country with a warning light and looking at the Up Cess on the City side of the Bridge. He accepted the incident did not occur at the Bridge. After a period of some confusion, Mr Singh ultimately conceded that he could not recall exactly, but it happened on the City side. He agreed his photos do not show exactly where the incident occurred and it was nowhere near the Bridge. It was put that the positioning of the warning lights from the maps, meant Mr Singh could not have been located where he claimed he was, and he must have been at the position point 13.445. He said 'maybe, yes'.

[207] Mr Singh was shown the CCTV footage of the Allawah incident and he identified the persons shown and where they were located. It disclosed that he and Mr Chawdhury were wearing yellow arm bands designating them as Lookouts; Mr Lynn was not. Lookouts are required to enter the danger zone first. Mr Singh did not do so. He claimed he was the Lookout Country side. He is shown looking at the warning light in the battery area (signal box) and had very clear view to the other warning light 450 metres away. He agreed that when Mr Lynn called him over, he was no longer looking at the warning light and he had turned his back to any trains on the Up Local. He denied this was in breach of the Rules, because Mr Lynn was looking at the other warning light.

[208] As the footage progressed, it disclosed two Team members in the 'four foot' of the Up Local, without any protection. Mr Singh claimed Mr Chawdhury was looking at the warning light and moved to the Down Local and when Mr Lynn was on the Up Local, he waved his hand to call him over. However, the wave of the hand is not seen. The Rules say that, if the Lookout is to move, he/she must speak to Mr Chawdhury. This could not have happened, but Mr Singh claimed he was not in breach of the Rules. The footage showed another warning light under the Bridge in the 'six foot', between the Up and Down Locals. Mr Singh moved behind the pylon and could not be seen turning around to look at this warning light.

[209] At 9.57.50 a person in orange is seen in the background immediately after the train passed, walking along the Down Local. Mr Singh denied this was him and said it was Mr Kolevski. Mr Singh was asked if the three people seen in the top of the frame at 9.56, were Mr Chawdhury, Mr Ivanovski and Mr Kolevski. He agreed it was, but they had not started measurements. The group were walking together on the Down Local. Mr Singh agreed it was dangerous if he was walking in the 'six foot', between the Up and Down Locals, and there was a train on the Up Main. He claimed Mr Lynn was protecting the Up Local behind in the Up Cess area, and looking at the warning light, although this was not visible from the footage and it was not possible to identify when Mr Lynn was at this point. Mr Singh accepted that he could only be guessing where Mr Lynn was, if you go past the Bridge and around the curve. Mr Lynn could not have called Mr Singh over at that point. He could have only done so if he was on the Up Local. Mr Singh agreed that the CCTV footage did not show him standing in the Up Cess. He was asked about this comment in his statement:

[214] Mr Singh claimed that the CCTV footage was much clearer on his home computer than the same footage showed in the Commission. This was why he said Mr Lynn had waved at him to move over. Mr Singh continued to maintain Mr Lynn was the additional Lookout, not the primary Lookout, meaning he was the outer Lookout, the one furthest from the workers. Mr Lynn could not have been the primary Lookout because he was not at a spot which gave the Team 15 seconds' MWT. Mr Singh said he had used the term 'additional' Lookout by picking up that term in the Rules. In any event, Mr Singh conceded the WPP did not record three Lookouts - only two.

[215] Mr Singh was taken again to the CCTV footage, this time on a computer screen. He agreed it was the same footage viewed yesterday and what he had watched at home. He identified the garb worn and equipment carried by each person shown in the footage. At 9.55.28 Mr Singh claimed Mr Lynn was waving to him, but this is not evident from the footage. Mr Singh sought to explain this, by saying that this was different to what he observed on his own computer, because it depends on how one loads the computer. It was put to Mr Singh that the person he identified as waving to him, was Mr Ivanovski, who was carrying a measuring stick. He stated again, that the video which the Commission saw the day before was different to what was being shown on the computer and what he saw on his home computer. The footage also showed both Mr Ivanovski and Mr Lynn with their backs to the warning light, meaning they could not be performing the role of Lookout. Mr Singh claimed again that the footage was not the same he viewed the day before. Mr Singh corrected a question asked of him about the Up Cess being a safe place. The Up Cess was unsafe, as the cutting was too narrow to be safe. Mr Singh was taken to the HRCLR and the description of the relevant section of the track and the risks identified in the Register as 'Restricted visibility' and/or 'no safe places at Allawah Station coming Up Illawarra Local 13200 to 13600 Protection officer shall assess warning times in this area and implement a high level of protection if required.' Mr Singh conceded that the Register says that there is no safe place at the location of the Bridge. This was consistent with the correction he had just made that the Up Cess was not a safe place.

[216] Mr Singh acknowledged that the WPP identified Lookout working for both the Up and Down Locals, despite the Register's prohibition because of 'inadequate warning time for Lookout working'. Mr Fagir objected to questions on this matter as being contrary to Mr Polias' own statement. Mr Fagir said that this was the reason why Sydney Trains issued a memo on 7 August 2015, in direct response to the incident which stated:

[221] Mr Singh acknowledged he was aware of what Ms Walker had said about the incident, particularly his role of not observing the warning light. He rejected Ms Walker's description of the incident, because she was not there. It was a minor incident. He did not accept he had any role in reporting the incident. He was not the Supervisor or the PO. He now does not accept he was a Team Leader and management's representative on the site.

[222] Mr Singh disagreed with Ms Walker's summary that his actions in not reporting the Allawah incident and fulfilling his responsibility, was a contributing factor to the Kogarah incident. Further, she had said that all five Team members demonstrated at-risk behaviours and did not correct their own or other's behaviours. He disagreed with this comment. Mr Singh would not accept that any of the Team had done anything wrong. Mr Singh acknowledged that the only parts of the Level 3 Report he disagreed with, were those which found wrongdoing by him.

[223] When shown the CCTV footage showing all the Team walking in the same direction, with no one looking on the Up Local, Mr Singh claimed the vision was not very clear. He was shown the ten seconds of footage which demonstrated he and Mr Lynn were walking in the same direction towards the City and no one was Lookout for the Up Local. He claimed that the footage was inconsistent with his timeline. He could not say who was in the footage. Mr Singh said he could still see one or two warning lights from an angle. He then accepted that the warning lights were not on an angle, but were perpendicular to the track. He agreed that what he was doing was in breach of NWT310 and NPR711, although he claimed he had an arrangement with Mr Lynn that if he moved, Mr Ivanovski and Mr Kolevski would look to the warning lights and not start work until the protection was in place. This was not what the CCTV footage revealed. He believed Mr Chawdhury, as the PO, was aware of, and gave permission for this arrangement. In any event, Mr Singh said there were manholes and platforms in the Up Cess area. Mr Singh agreed that he did not mention this arrangement during the Level 3 Investigation, in his ONRSR interview, or in his 'Show Cause' letter.

[224] Mr Singh rejected Ms Walker's conclusion as to the risk behaviour of the Up Local Lookout not looking back for up to 20 seconds. His explanation was that he knew Mr Lynn, Mr Kolevski and Mr Ivanovski were looking at the light. When he told the ONRSR investigators he was in the Up Cess, this could not be correct because he was on the Up Local. He explained it was a safe place, had it been necessary. As to the finding that the whole of the Team demonstrated an element of complacency being inconsistent with being alert to issues of safety, Mr Singh replied:

[226] Mr Fagir opened his submissions by putting that notwithstanding seven hearing days and voluminous documentary material, this case was not all that complicated. This is so because it involves two incidents on a single day (1 August 2015) in which it is alleged were caused by Mr Singh's 'gross negligence or wilful defiance of safety rules'. However, the picture painted by Sydney Trains, and Mr Bugeja in particular, failed to take into account systemic failures, the contributory conduct of other workers and ignored any real context. The result was that the narrative was 'quite misleading.' Mr Fagir opined that the true position was that Mr Singh and his work colleagues did nothing out of the ordinary on 1 August 2015. The Kogarah incident occurred because a very experienced PO failed, for mysterious reasons, to spot an approaching train. As to the Allawah incident, it was relatively minor and was caused by a worker carrying out measurement work on an unprotected line. This arose from either a direction from the Supervisor, or the Supervisor allowing it to happen.

[227] Mr Fagir submitted that rather than any gross negligence on Mr Singh's part, the incidents disclose deficiencies in the system for track measurements at the time and which were later recognised and corrected. None of the respondent's witnesses had any regard to these systemic failures. Mr Fagir observed that despite the difficulty Mr Singh had in obtaining both the Level 3 Report and the ONRSR Report, both reports highlighted these systemic failures. This was why he had to spend considerable time in dealing with the reports in cross examination of the witnesses. Mr Fagir noted that there was evidence of persons who were present on the day, which contrasted to the opinions of Mr Bugeja and Mr Polias, who were not present and who offered subjective opinions about what was shown on the CCTV footage, without establishing what Network Rules had been breached. The Commission would not accept Mr Bugeja's opinion as fair or accurate. His statement evidence was inconsistent to what he later said in cross examination.

[228] Mr Fagir analysed the evidence of each of Sydney Trains witnesses.

[232] Mr Fagir observed that generally, Mr Polias' evidence was at some points very careful and pedantic. At other times, his evidence was the opposite and he was forced to concede his evidence was incorrect. His evidence should be approached from the standpoint of his reluctance to give any evidence prejudicial to his employer's case. As to the Allawah incident, Mr Polias had said:

(a) Mr Singh was in a position he should never have been in;

(b) even in this position, Mr Singh should have used his whistle or horn and have the workers move to a safe place;

(c) Mr Polias accepted there was no Rule or clear requirement in the circumstances. He had only applied his own view of what should have happened;

(d) workers in the field, under duress, sometimes make wrong decisions;

(e) he was not sure why it was important to be clear about the exact location of the Allawah incident; and

(f) Mr Polias had not even attended the location. The photos attached to his statement were taken from a patrol vehicle passing through the area.

[233] Mr Fagir criticised Mr Polias about the Kogarah incident by noting his evidence was based entirely on what he had observed. He then formed his own opinion from two and a half minutes of CCTV footage, without any knowledge of what arrangements the workers had made that day. However, the Commission might accept Mr Polias' other oral evidence about the Rules; namely:

(a) Mr Singh did not plan or supervise the work and had no responsibility to check the HRCLR himself;

(b) there are areas where Lookout working is prohibited, but Allawah and Kogarah are not in that category. However, there is still a requirement to ensure MSDs, safe locations and warning lights;

(c) the level of protection was ultimately the responsibility of the PO to assess;

(d) the Network Rules do not deal with Lookout working on moving worksites;

(e) he generally agreed with all of the Level 3 Report's findings; and

(f) the responsibility to report a 'near miss' was with the Supervisor and the PO, although Mr Singh should have reported a 'near miss', if the Supervisor or PO did not.

[234] Mr Fagir pointed out that as a result of an internal review, shortly after the 1 August 2015 incident, there was now an instruction that the WPP must be countersigned by a second person. Mr Polias accepted that his view of the CCTV Kogarah footage did not disclose Mr Singh facing the opposite direction to approaching trains and there were other times he can be seen looking straight down the line and at the warning lights.

[235] Mr Fagir observed that Mr Bugeja intended to give the impression he has a total, unwavering, uncompromising commitment to safety, and a thorough understanding of the Network Rules and zero tolerance for breaches of safety rules. He claimed to have been shocked and disgusted by Mr Singh's conduct. However, Mr Bugeja's statement had been carefully crafted to advance Sydney Trains' case, without making any real effort to inform the Commission of the relevant facts and circumstances.

[236] Mr Fagir submitted that Mr Bugeja was an unreliable witness based on the following evidence:

At the outset he downplayed the role of the Supervisor, but then introduced a novel concept of a Technical Supervisor (Mr Lynn) and sought to contrive Mr Singh's role as Team Leader was really a second Supervisory role - one dealing with safety and protection and the other dealing with the measurements. He then claimed the concept of Supervisor was not utilised at all on track and civil work and had to backtrack when shown his own memo on the matter. Ultimately, Mr Bugeja accepted that having two Supervisors would result in ambiguity of responsibility and the Supervisor should be one person. Mr Fagir submitted that Mr Bugeja's incorrect evidence was intentionally designed to avoid a major hole in the respondents case - that the Supervisor got away with a 'slap on the wrist' and Mr Singh was sacked.

Mr Fagir said Mr Bugeja's evidence changed from time to time to suit his case. Further, he was unclear as to the safety rules and procedures; for example, he had made the decision to dismiss the applicant because of his mistaken belief that Lookout working was prohibited in the areas. Another example, was Mr Bugeja's belief that the warning lights had nothing to do with Lookout working. This was directly contrary to Mr Polias' evidence and the Rules themselves. He was not even sure if the MWT was 15, 20 or 25 seconds. Mr Fagir said that far from being someone with a clear understanding of safe working, Mr Bugeja only had a broad grasp of what the Network Rules provide for.

[237] As to the HRCLR, Mr Bugeja did not know if Mr Lynn or Mr Kinder had checked the Register, but insisted nevertheless, that Mr Singh was required to do so, when he was not. Mr Bugeja could not point to any Rule which obliged him to do so. He was hardly 'a crusader for safety'. Further, Mr Bugeja ignored evidence which supported Mr Singh's position and took no steps to investigate whether his version of events was true or false.

[238] Mr Fagir said that Mr Bugeja did not review any other CCTV to check if other teams worked in the same way the Team did that day. He took no steps to investigate whether the Team's actions that day were custom and practice. Further, Mr Bugeja failed to take account of the systemic failures identified in the Level 3 Report and that 14 of the Report's 15 recommendations were implemented, including a review of processes for the WPP. Ultimately, Mr Fagir submitted the point was that Mr Bugeja was not present on the day, he offered a series of unexplained opinions on what he saw on the CCTV footage. It was impossible to accept Mr Bugeja's evidence as true, given he claimed to have a zero tolerance to safety breaches, but undertook no enquiries to satisfy himself on the various roles of the Team members that day.

[239] In respect to the photographic and CCTV evidence, Mr Fagir accepted that such evidence can be very useful, but where this evidence is unclear as to perspective or distances, or taken some time after the event, such evidence should be treated with some caution.

[240] In this case, the witness evidence of those who were actually there, is to be preferred. Mr Singh had traced and explained each step of the footage and described what had occurred. Mr Polias' photographs were taken some distance away from where the incident had occurred (in answer to a query from me, Mr Fagir acknowledged that the applicant was wrong about the CCTV footage being different to that which he had viewed on his own computer). One example where the footage was unclear was where the CCTV does not appear to show Mr Lynn moving Mr Singh on and he then moved. Mr Fagir believed from his own viewing, that this is what occurred. Mr Fagir accepted that the Level 3 Report and the ONRSR Report are significant; but it does not follow that every proposition in them is correct. It should be remembered that it was Mr Singh who had sought these reports and in respect to the ONRSR report it is from an independent investigator. The applicant had addressed all of the issues in the reports, whereas Sydney Trains had not.

[241] Mr Fagir also pointed out that given the applicant's poor grasp of English, it is appropriate to understand that various things he said, may have been lost in translation. Mr Fagir noted that from the reliance by Sydney Trains on the exact location of the Allawah incident, it is not immediately apparent as to its significance. Even the Level 5 Report describes it at 13.800. This was wrong. The Level 3 Report said it was 13.445. However, the point of the distinction is not apparent, particularly as it is not even clear that 13.445 was where the measurement was to be taken.

[242] Mr Fagir addressed each of the five allegations against Mr Singh by reference to the evidence.

[249] Mr Fagir relied on what he said about this at [243]-[246] above.

[250] Mr Fagir then referred to what he called the 'new allegations'. He said there had been a long and very extensive investigation and disciplinary process, conducted over two years during which there had been no allegation that the applicant committed misconduct by dawdling or turning his back from time to time on the warning lights. Mr Fagir accepted the employer is not limited to the allegations made at the time, but there are risks in doing so. Mr Fagir said the first risk is that the failure to raise this issue sooner, seriously undermines the proposition that the CCTV footage reveals gross breaches of safety rules, when any number of persons had reviewed it and relied on it, but had never raised this allegation, until two years later. This leads to a conclusion that when the matter got to this point, after being reviewed by many others, it was clear the original allegations could not sustain dismissal, and something else had to be found.

[251] Secondly, the late introduction of these allegations creates serious procedural fairness issues for Mr Singh. As the incident happened three years earlier, his and the memories of others would have faded, and he was denied an opportunity to lead evidence which might exculpate him. Thirdly, and relatedly, to suggest Mr Singh was dishonest when no one asked him about these matters at the time, was a denial of procedural fairness.

[252] Mr Fagir submitted that having regard to all the evidence, it is difficult to understand why these 'experienced cleanskins', would blatantly adopt an unsafe work method. The more obvious conclusion is that this was how the work had always been performed, consistent with the relevant Network Rules. Mr Polias's criticisms as to Mr Singh not using the horn or whistle, and he had turned away from the direction of travel, were at the margins. Lookouts must keep an eye on both directions and in any event, the warning lights gave Mr Singh 30 seconds' MWT, when the WPP required 15 seconds.

[253] Mr Fagir put that even according to the strict letter of the Network Rules, it would not make a difference, as the Commission would view these matters in a practical, not theoretical way, by ignoring how the work had been carried out in the past. Mr Fagir rejected Sydney Trains' approach of micro-analysing where the Level 3 Report itself identified a disconnect between the theory and what happened in reality. Moreover, there was confusion between Sydney Trains' own witnesses about the way the Rules should operate. This was not a matter of clear disobedience, but a perfectly defensible interpretation by the employees as to how the Rules should operate, based on their experience: Mr Fagir argued that the decision in Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 ('Parmalat') can be distinguished in this respect.

[254] In summary, Mr Fagir submitted:

(a) there was no valid reason for Mr Singh's dismissal as the five original allegations cannot be sustained;

(b) Mr Singh worked as directed and in accordance with the usual practice;

(c) had it not been for Mr Chawdhury's mistakes, none of the consequences would have happened;

(d) the more recent allegations are adequately explained;

(e) even if there was breach in two and a half minutes of a 34 year unblemished record, this could not justify the decision of dismissal.

[255] Mr Fagir also raised a number of issues of procedural unfairness as follows:

(a) Mr Bugeja instructed the Investigator to assume various things which should have been determined independently;

(b) Mr Bugeja ignored systemic failures and concentrated only on the culpability of the workers;

(c) Mr Bugeja failed to look into matters thrown up during the disciplinary investigation, because he had predetermined that two individuals were to be dismissed; and

(d) the delay in dealing with the matter itself, is procedural unfairness; see: APS Group (Placements) Pty Ltd v O'Loughlin [2011] FWAFB 5230.

[256] Mr Fagir added that the later allegations were at the 'margins' and Mr Singh had to contend with new allegations three years after the event, without CCTV footage or access to the workplace.

[257] Under the heading 'other matters' (s 387(h)), Mr Fagir submitted that relevantly there was differential treatment and an unexplained contrast between Mr Singh's fate compared to the others. In fact, on the respondent's case, all of the Team had culpability, but only two were dismissed. Two were demoted and Mr Lynn got away with a reprimand, only due to his contrition. Mr Fagir further observed that:

(a) the responses from the workers were virtually identical, in that they all rejected the allegations;

(b) Mr Lynn did not 'put his hand up' for doing the wrong thing at Allawah, which he accepted was wrong and dangerous; and

(c) Mr Lynn's contrition came after he knew he would not be dismissed, and Mr Singh would be.

[258] Finally, Mr Fagir submitted it would be hard to imagine a more convincing 'harshness' case than this one. This was so because Mr Singh had 34 years of unblemished service. He is 77 years old and very unlikely to work again, if he does not get his job back. As to the relief sought of reinstatement, Mr Fagir conceded it would have been easy for Mr Singh to admit some wrongdoing and acknowledge that he would not act the same way again. However, he does not accept he had done anything wrong. Nevertheless, he does say he has learned from the experience and would approach the same circumstances differently, if they arose in the future, particularly now that gaps in the system have also been addressed.

[259] Mr Fagir did not demur from the critically important emphasis on safety, particularly in the rail industry. However, the goal of safety should not mean a long standing employee is made the 'scapegoat', when systemic failures were identified and other employees had more culpability. In answer to a question from me, Mr Fagir said the applicant accepted that if he was reinstated, he would be required to be medically examined, consistent with Sydney Trains' Policy which applies to all of its employees.

[260] Mr Seck opened his submissions by noting that Mr Singh seeks reinstatement and will not consider any other settlement outcome in this case. This was despite him being offered a non-safety role, without loss of pay as a Team Leader, or a very high financial settlement with a resignation and Gold Pass. Despite eight days of proceedings, the case is very simple - what was Mr Singh's role on 1 August 2015 and, did he comply with Sydney Trains' Rules, policies and procedures? It was common ground that Mr Singh was an experienced PO, who knew and understood the Network Rules and procedures and the responsibilities he had as a Team Leader.

[261] Mr Seck added that Mr Singh is seeking a complete reinstatement, by insisting that he had done nothing wrong. However, Mr Fagir had acknowledged in oral submissions, that Mr Singh's actions in the Allawah incident was an 'error in judgment' in not performing his role as Lookout. These propositions are 'inherently incompatible'. Even so, Mr Seck submitted that in final cross examination, Mr Singh continued to deny the allegations and said he would not have done anything differently. He continues to believe he is capable of working in a safety critical environment. This stance demonstrated a deep lack of insight into his conduct and culpability for the events of 1 August 2015 and of the findings in the Level 3 Report and the ONRSR Report.

[262] Mr Seck agreed that the length of the investigation and the decision making process, was far too long and Sydney Trains is 'trying to do better'. However, this was due in large part to the fact that there were four investigations, reflecting the seriousness of Sydney Trains' commitment to safety. These investigations were:

an immediate Level 5 Investigation;

a detailed Level 3 Investigation;

an ONRSRS Report; and

a disciplinary investigation of all those involved.

[263] Mr Seck said that the Level 3 Report (which Mr Singh embraced where it supported his case, but rejected it where it was critical of him), makes clear that in addition to systemic root causes, there was individual culpability to varying degrees; both of which were significant contributing factors to the incidents. He emphasised that Sydney Trains had implemented 14 of the 15 recommendations in the Level 3 Report.

[264] Mr Seck referred to, and relied on a decision of the Full Bench of the Commission in Illawarra Coal Holdings Pty Ltd t/a South32 v Gosek [2018] FWCFB 749 which stated at [92]:

[270] Mr Seck referred to Mr Singh's rejection of the Level 3 Report where it was critical of him and his disagreement with any of Ms Walker's findings which identified his failures to safely perform his duties on the day. In respect to the ONRSR Report, Mr Seck noted that Mr Singh participated in a recorded audio interview and he relies on the interview in this case. However, rather than this Report (in respect to the Kogarah incident only) supporting Mr Singh, there were numerous findings critical of him and the Team, including dawdling or acting complacently. Both these Reports form an adequate grounding for the allegations to be sustained. However, this conclusion is also available from the primary evidence in this case.

[271] Mr Singh had been a Team Leader for ten years. He accepted his job description was accurate, with its significant focus on undertaking and supervising work in a safe way, including adhering to Network requirements, such as the WPP. The applicant insisted he knew Sydney Trains' policies and procedures backwards and knew what was required of him as Team Leader. Further, he acknowledged the only position which applied was that of Line Manager and that function required specific incident and reporting measures. After taking Mr Singh through all of the duties and obligations of a Line Manager, he confirmed it included a requirement to check the HRCLR. The applicant also confirmed his attendance at various training sessions, specifically in respect to his role as a PO.

[272] Mr Seck observed that Mr Singh had accepted that he had the highest substantive role within the Team, which itself consisted of other experienced PO4 workers. He accepted that he continued to be paid as a Team Leader and that his role's duties continue, irrespective of whether he was performing a Team Leader role at the time. He understood that as the most senior person on the day, he was a management representative on the job, and other Team members looked to him and were influenced by him in this role. This was not a case of a person simply following directions as the Lookout. He already had very significant experience in the Sutherland/Sydenham area. In his evidence, Mr Singh claimed he was an 'outsider', unfamiliar with the area. However, this was inconsistent with the concessions he made in his ONRSR interview and in cross examination. It is also inconsistent with his own evidence as to his undertaking practices in accordance with 'local arrangements', which he claimed he knew very well. By contrast, Mr Lynn had only worked in the area for eight weeks.

[273] Mr Seck dealt in detail with the WPP that day which Mr Singh had signed off as him having been briefed as to safe work methods and site specific safety management plans and local hazards. Despite the WPP identifying Mr Singh as Team Leader, he claimed someone else had put his name on the WPP. Mr Seck submitted that this evidence was implausible. Then, in respect to Maximum Track Speed of 100km and the working out of the MWT, the WPP identified two Lookouts, whereas Mr Singh claimed there were three Lookouts - himself, Mr Lynn and Mr Chawdhury. On this inconsistency his evidence changed - he firstly said he and Mr Chawdhury were the Up and Down Lookouts and then said he and Mr Chawdhury were additional Lookouts and Mr Lynn was the primary Lookout. Mr Singh's evidence was also inconsistent with the absolute requirement to maintain MSD at all times. He claimed he could use the warning lights instead and he had an 'arrangement' with Mr Lynn to swap roles.

[274] Mr Seck noted that not only did Mr Singh agree 'we all signed the briefing papers', but he agreed, as the most senior person and consistent with his job description, 'I didn't object to it' (the WPP). All the evidence (including the Level 3 Report) points to the Team having a collective responsibility for safety. It followed that Mr Singh was not only the most senior person within the Team, but he was clear in accepting collective responsibility for the decisions taken in choosing Lookout working that day. Mr Chawdhury's interview is consistent with Mr Singh in this respect.

[275] Mr Seck observed that in his first witness statement, Mr Singh came up with further explanations for his conduct for the first time; namely, that:

(a) He was an 'outsider'. This was completely inconsistent with his evidence that he had significant experience in the area.

(b) He had asked Mr Chawdhury if he had checked the Register. This is at odds with his other evidence that there were all experienced PO4s, familiar with the area and comfortable with the safety arrangement. Mr Seck said this claim was implausible on two levels: firstly, Mr Singh had not raised this important question prior to the proceedings; and secondly, because the applicant was the Line Manager who should have checked the Register in any event.

(c) He had spoken to Mr Lynn and they had agreed Mr Lynn was to act as an additional Lookout. Mr Seck said this claim was not raised during the applicant's ONRSR interview, the Level 3 Investigation or the disciplinary process.

[276] Mr Seck added that the Network Rules provide for the circumstances and actions to be taken when an additional Lookout is to be used; none of which were relevant or adopted here. Further, Mr Singh's evidence changed in cross examination when he described Mr Lynn as the primary Lookout and not an additional Lookout. Again, for the first time the applicant described this as a 'local arrangement'.

[277] Mr Seck relied on the following objective evidence which makes clear the inherent unlikelihood of Mr Lynn being the additional Lookout:

(a) Mr Lynn was standing next to the Team members taking the measurements and not in any position to be able to fulfil a Lookout role;

(b) Lookouts must have a horn or whistle. Mr Lynn did not;

(c) Lookouts must be within sight of the other Lookouts. Due to track curvature and distances, Mr Lynn could not have been able to communicate with Mr Singh or Mr Chawdhury;

(d) as required by the Rules, Mr Lynn was doing other work. He was not permitted to be looking in any direction; and

(e) there is no position under the Rules for 'inner and outer' Lookouts.

[278] In dealing with the Allawah incident, Mr Seck said the allegation was very simple - Mr Singh was not looking in the right direction or at the warning lights and not looking continuously. This is required by the Network Rules and Procedures and the Level 3 Report found he was not performing these duties that day. Where the Rules are clear and unambiguous, that might be the end of it. However, Mr Singh's explanation that he needed to be able to look in both directions, cannot be sustained, because Mr Chawdhury was to be looking in the other direction. This is the 'error of judgement' described by Mr Fagir in his submissions.

[279] Mr Seck acknowledged that the CCTV footage is not perfect, as it does not record the train going past the incident point. However, it does reveal:

(a) Mr Singh turning around;

(b) he was not looking at the warning light;

(c) he did not have MSD at all times, because of the track curvature and the Bridge pylons;

(d) it was contrary to the Rules to move to attend another safety issue, when he should have used the horn or whistle to warn the workers to move to a safe place;

(e) he was not continuously looking, contrary to the Rules which require no other work to be performed; and

(f) he did not report to the PO, as to what the other safety issue was.

[280] Mr Seck submitted that despite Mr Singh arguing that he had saved the employees from danger, he actually put them in more danger, as there was no Lookout on the Up Local, and no MSD. Mr Seck said that the contest about the incident location demonstrated that the applicant could not have been sure where it was. Moreover, his photos, taken long after the event, were incorrect as to the exact location. This was relevant for three reasons:

(a) it went to the Mr Singh's credit as to his recollections;

(b) whether he could have had MSD or MWT; and

(c) whether he could see what he claimed was another unsafe work practice. This is not apparent from the CCTV footage.

[281] Mr Seck put that Mr Singh's evidence was inconsistent or changed as to where he was at various points in time. This meant he was an unreliable witness, in that he does not really remember, or he is trying to improvise explanations when the evidence is presented to him. One obvious example was his claim that Mr Lynn motioned him to come forward, when the CCTV footage clearly shows the person who calls him forward is the one holding a measuring stick, Mr Ivanovski. When presented with this, Mr Singh proposed that the footage he saw had shown something different. Mr Fagir correctly acknowledged there was only one piece of footage. Accordingly, Mr Seck said Mr Singh's evidence that Mr Lynn called him forward, cannot be correct and should be rejected.

[282] In the context as to whether there was a 'near miss', Mr Seck dealt firstly, with Mr Bonatesta's evidence, who had no reason to make up his evidence, as he no longer worked for Sydney Trains, and did not know anyone in the Team. Mr Bonatesta was doing his best to give a truthful and honest account of what occurred. Despite what he said to the Network Controller, about not being sure if there was a 'near miss', this was easily explained by him being shaken up by the incident. Importantly, however, shortly after the incident he wrote on a Stopping Pattern Working Report in his cabin, 'Train worker on my line. Near miss!'. Ever since, he was adamant as to what he observed. Mr Seck put that this evidence was consistent with what Mr Singh said that Mr Chawdhury was 'cross at him' for missing the light and he apologised. Mr Chawdhury's account was also consistent with his ONRSR interview. Further, Mr Singh accepted that he understood the requirement to notify of any safety incident which had the potential to cause death or serious injury. Mr Seck emphasised the incident was a 'near miss'. The Level 3 Report was completely correct on this issue. Mr Singh was the person most culpable for that incident, because of his failure to perform his Lookout role and as he was the most senior person on site, he should have reported it. Mr Seck noted Mr Lynn's admission at the time, that the Team was waiting for the Incident Commander and when he did not arrive, they did not report it because they 'thought they were going to get away with it'.

[283] Turning to the Kogarah incident, Mr Seck submitted that the CCTV footage is very clear. It was accepted by the Level 3 Investigation. He said the footage did not disclose any swapping of roles between Mr Singh and Mr Lynn. There was no approval from the PO. If any move in location occurs, it must be from a safe place. The 'local arrangement' was not in the WPP and appears nowhere else in the evidence prior to these proceedings.

[284] Mr Seck then went in some detail to the HRCLR which makes clear that Lookout working cannot be used where there is inadequate MWT. Also relevant is the description of the Track (13200-13600) which states 'Restricted visibility and at Down Main 14000-14300 'Restricted visibility and no safe places.' Mr Seck noted that Mr Singh accepted that for these locations, Lookout working is not permitted. Mr Seck rejected any criticism of Mr Polias as unfair, as he was going on recollection and not what the Register actually says. In any event, the point is Mr Singh did not check, or question the Register.

[285] In dealing with unequal treatment, Mr Seck made the following submissions. Mr Chawdhury's and Mr Singh's culpability were the 'closest match' and both were dismissed. Mr Lynn was entirely different. He was the most junior person on the Team. He did not fail to perform the Lookout role, because he was not the Lookout. This was the area most criticised by the Level 3 Report and the role which Mr Singh and Mr Chawdhury had failed to fulfil. Mr Lynn was also contrite, accepted wrongdoing for what had occurred and said it would not happen again. This was completely at odds with Mr Singh's refusal to accept any responsibility. Further, as Mr Lynn was at the bottom of the salary band, he could not be demoted.

[286] Mr Seck accepted the elements of harshness claimed by Mr Singh, primarily his 34 years of unblemished service. However, this will not generally outweigh the seriousness of the conduct; a less than candid response to an investigation; an abject refusal to accept the gravity of the conduct; a refusal to accept any responsibility for the incidents; no expression of any contrition or remorse; and the fact Mr Singh had learnt nothing from the experience. This was his steadfast position.

[287] In terms of relevant factors in s 387 of the Act, Mr Seck submitted that:

(a) The allegations were put to Mr Singh and he responded through his Union, in writing. He declined an oral response in the disciplinary investigation.

(b) There was no prejudgement by Mr Bugeja. He responded appropriately to the findings in the Level 3 Report by initiating a disciplinary process as to any breaches of the Code of Conduct or Sydney Trains' Policies and Procedures.

(c) There were really no new allegations against Mr Singh. These issues arose from a new account of the incident made by Mr Singh himself. Mr Seck accepted the Kogarah incident could have been raised earlier, but this was in the context of its seriousness being recognised in the ONRSR Report.

[288] Finally, Mr Seck submitted Mr Singh's dismissal was not unfair. His unfair dismissal application should be dismissed.

[290] Mr Fagir addressed the settlement offer by Sydney Trains. There is an application for compensation in this case. The non-safety critical role which was offered to Mr Singh was away from his depot to a Pitt Street office, in a job he knew nothing about. In addition, his earnings would be halved, because his track work attracted regular overtime and weekend work. Nevertheless, Mr Fagir added that vindication is very important to Mr Singh.

[291] Mr Fagir did not accept he had submitted Mr Singh had made an 'error of judgment' in respect to Allawah. If he did - he 'misspoke'. He explained that although Mr Singh made the right call in the circumstances, if this was found to be wrong and that he should have done something differently, at its highest this was an 'error of judgement', and not some wilful or grossly negligent breach of the safety rules.

[292] Mr Fagir submitted the decision in Gosek did not have much to do with this case. What the Full Bench said in Gosek was that even if there was some deficiency in an internal decision making process, this would not turn an otherwise unfair dismissal, into a fair one. In this case, the procedural unfairness issues are significant. They include:

new allegations being raised after months of investigation and inquiry;

the delay deprived Mr Singh of an opportunity to lead evidence that might be exculpatory;

Mr Singh is criticised for saying things now that he did not say earlier and even then the criticism is about the minutiae of detail. An example of this was whether the CCTV footage revealed the applicant being motioned forward by Mr Lynn or Mr Ivanovski. Mr Singh's credit surely cannot be impugned for a simple mistake (assuming it was a mistake) three years after the incident.

[293] Mr Fagir compared this to the evidence of Mr Polias and Mr Bugeja, who did not mention one word of acknowledgement of any factor, other than Mr Singh's personal culpability. Mr Fagir emphasised the reluctance of Sydney Trains to produce the Level 3 Report, no doubt because it identified systemic factors leading to the incidents, apart from its focus on a few pages of criticism of Mr Singh. If it had not been for the Notice to Produce and the cross examination of Sydney Trains' witnesses, the Commission would not have the full picture it now has. Mr Fagir said it was not Mr Singh who denied the Level 3 Report's existence, or sought to limit the Commission's understanding of the full picture. Nevertheless, Mr Singh claims the Level 3 Report 'got it wrong' in a number of areas. Mr Fagir said that the Commission would give greater weight to the evidence in this case and the fact that the Level 3 Report identified 14 contributing factors, with only 1 of them involving Mr Singh, than the second hearsay accepted by Sydney Trains during the investigation. Mr Fagir put that the Level 3 Report suffered from the same problem as the disciplinary investigation and Mr Bugeja's failure to get to the bottom of what happened at Allawah.

[294] Mr Fagir focussed on Sydney Trains' assessment of the seriousness of incidents by reference to actual outcome - not potential outcome - and the Investigator's conclusion that there was a culture of non-reporting of 'near misses'. In this context, Mr Singh could hardly be held responsible for not reporting a potential outcome. Even if the criticisms of Mr Singh were accepted, no conclusion could be reached that he and Mr Chawdhury should be dismissed, but no one else in the Team. Mr Fagir said that when seen in the context of cultural or habitual practice, this was not a case of 'one person going off the reservation'. Mr Fagir agreed that the Level 3 Report was not about apportioning blame or recommending disciplinary action. However, it did not identify any wilful breach of the Rules by anyone. It just said particular workers fell short of expectations.

[295] Mr Fagir rejected Mr Seck's continued criticism that Mr Singh had an express obligation, as a Line Manager, to check the HRCLR. In light of the reference to 'Line Managers planning or supervising work in the rail corridor must consult the Register prior to commencing work' and that Mr Singh did not supervise or plan the work, it was a nonsense to try to cling to the claim that he had failed to consult the Register. Mr Fagir noted again that Mr Singh was sacked, but Mr Lynn, as the Supervisor, kept his job.

[296] Mr Fagir submitted that the notion that the Network Rules require the Lookout to look in one direction and do nothing else, was inconsistent with Mr Lynn's evidence that '[t]he rules require if a lookout re-locates either the team moves to a safe place or someone else keeps lookout' and that Mr Singh had a broader safety role to not only look after himself, but for his work mates. The truth is the issue is about being alert to train movements in both directions. In any event, there were warning lights at Allawah.

[297] Mr Fagir put that Mr Singh could hardly be criticised as to his credit because he relied on photographs of the location. Further, Mr Lynn's evidence that the incident was not reported because the Team did not want to get into trouble, was consistent with Mr Singh's evidence. Mr Fagir suggested that it is not apparent from the CCTV footage that Mr Singh and Mr Lynn are alternating or relaying. In these circumstances, the authorities make clear that the direct evidence of the witnesses should prevail.

[298] Mr Fagir again observed that there was no prohibition on Lookout working; rather, the requirement was that the PO shall implement a higher level of protection, if required. Further, Mr Polias did not know what he was talking about when he was questioned about the Register.

[299] Mr Fagir denied the new allegations arose because Mr Singh said something he had not said before. At all times, he had said that there was someone taking a measurement on the Up Main which is why he moved to intervene. Further, the new allegations arose from the CCTV footage itself and came after the incident had happened. Mr Fagir said that there was nothing Mr Singh had said that would have prompted a complaint about his conduct. It was more a case of 'we've got a bit of a problem with the original allegations. What else can we find?'.

[300] Mr Seck responded to my queries as to Mr Fagir's submission on compensation by noting that the applicant did not mitigate his loss, in that:

(a) he refused an offer of reemployment;

(b) he had not sought any alternative employment; and

(c) the Commission would discount any compensation, because of the applicant's misconduct (s 392(3)).

[313] Mr Seck relied on the decision of the Full Bench in Gosek by submitting that a faulty investigation (while not conceding as much in this case), will not necessarily result in an otherwise fair dismissal being rendered unfair (see: [264] above).

[314] In my view, the decision in Gosek is consistent with the decisions I have earlier cited which make clear that the Commission's obligation in a misconduct case is to determine for itself, on the basis of the evidence before it, whether the alleged misconduct took place and what it involved.

[315] Mr Fagir was critical of Mr Bugeja's investigation and his conclusions, which he said had been predetermined to ensure Mr Singh was the only one targeted for dismissal. Further, Mr Bugeja had failed to have any regard for the systemic failings identified, and the more culpable role of Mr Lynn. Even if this was correct - which I do not accept - Mr Bugeja's investigation was not the only evidence Sydney Trains had before it. Moreover, Mr Bugeja did not conduct the WCIU investigation. There is an abundance of other evidence which Mr Bugeja had before him which corroborated his conclusions. In any event, it could hardly be said that Mr Bugeja had no regard to the systemic failings identified by Ms Walker in the Level 3 Report. 14 of the 15 recommendations of Ms Walker were adopted. To treat this as some kind of numbers game in that systemic recommendations clearly outweighed Mr Singh's single involvement in the incidents, ignores the reality of the extent of human error that Ms Walker also identified. I will return to these matters later. In any event, in this case the Commission was provided with a large array of detailed and comprehensive reports, Rail policies and procedures, CCTV footage, an inspection of the incident locations and the statement and oral evidence of all the relevant witnesses. It can well be said that nothing was left out or inadvertently omitted. In my view, the Commission is in an ideal position to determine this matter, for itself, based on the evidence I have before me and which I have taken into account. I place particular emphasis on the Level 3 Report.

[316] Mr Singh's viva voce evidence spanned almost three days. He had the assistance of a Punjabi interpreter. Having observed him in the witness box and from an objective review of the transcript, the length of Mr Singh's cross examination, in my opinion, was in large part due to his meandering, deflective and numerous argumentative or unresponsive answers, despite Mr Seck's valiant, but often futile attempt to get him to give a straight answer.

[317] While I accept Mr Singh was in unfamiliar and likely stressful surroundings in court, I have trouble reconciling his performance in the witness box with the facts that he had 34 years of service, risen to the rank of Team Leader and had the most senior rail protection level training; all of which must require good communication skills and more than just a basic understanding of English. I also found Mr Singh's oral evidence a far cry from his statement of evidence which was carefully laid out, well expressed and meticulously detailed. His statement evidence raised for the first time, numerous issues and explanations which had not been raised in his interactions with Ms Walker, the Regulator or in his 'Show Cause' response. More about this shortly.

[318] Regrettably, but perhaps understandably, the entirety of the applicant's evidence was designed and constructed to support his steadfast trope in this case; namely, he had done nothing wrong on 1 August 2015; Sydney Trains was responsible for the systemic failings on the day and all the other members of the Team, except himself, were culpable and responsible for any individual personal failings. Indeed, not only had he done no wrong, but he claimed his actions in moving from his Lookout position to warn of another safety breach, averted a more serious incident.

[319] Mr Singh's dogged refusal to accept any responsibility for the events that day entirely coloured his approach to answering questions which even hinted he might have had some culpability. His answers were deflected by either focussing on criticising the part played by other members of the Team or avoided entirely, by him giving an answer completely unrelated to the question. Given the circumstances, it is little wonder Mr Seck's cross examination was long, detailed and probing. The applicant would concede nothing, even including his own Counsel's submission that at its highest, he may have made an 'error of judgment' in the Allawah incident.

[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.

(1) Perhaps the most concerning of all, in a classic worst case of 'cherry picking', was 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. He justified this by saying Ms Walker was not there and when he said: 'she's not God'. I simply do not understand how it could seriously be suggested that the Commission would accept this selective, illogical and incoherent reading of the Level 3 Report.

(2) Similarly, and equally troubling, was when the Commission was shown the CCTV footage, which plainly showed Mr Ivanovksi (with the measuring stick) motioning the applicant and not Mr Lynn, as he claimed. Mr Singh's ridiculous explanation was that this was not what he saw when he viewed the same CCTV footage on his home computer. To maintain his narrative, and Mr Lynn's alleged culpability, in the face of incontrovertible evidence, Mr Singh had to resort to absurdity to try and explain away the patently obvious.

(3) In a further attempt to reconstruct history, Mr Singh claimed that there was an agreement in the Team for three Lookouts on the day - himself, Mr Chawdhury and Mr Lynn. He described himself and Mr Chawdhury as the 'inner' and 'outer' Lookouts and Mr Lynn as the additional primary Lookout (despite having said Mr Lynn was the additional Lookout). There are a number of problems with this improvisation.

(a) There is no provision in the Network Rules or the Procedures for a position of 'inner' and 'outer' Lookouts.

(b) The WPP, which Mr Singh and other Team members signed off on, makes absolutely clear the plan for the day was the utilisation of two Lookouts, not three. Mr Singh's post explanation for this obvious documentary evidence, was that he had not signed the WPP that morning, implicitly suggesting that, at a later point in time, someone had forged his signature on the document. This is utterly implausible. This evidence is also inconsistent with the Union's response on his behalf to the 'Show Cause' letter, in which he said: 'We all signed the briefing papers'.

(c) It was accepted that to perform the role of Lookout a person must carry a horn and whistle. Mr Lynn had neither. Lookouts are also required to wear a yellow arm band. The applicant and Mr Chawdhury can be seen with yellow arm bands; Mr Lynn does not.

(d) The Network Rules require the Lookout to be engaged solely in that function and not undertaking any other function or work. The evidence was clear that Mr Lynn was recording the track measurements in close proximity to Mr Ivanovski and Mr Kolevski. Mr Lynn could not have been acting in the role of an additional Lookout, which in any event, would warrant a recalibration of MSD and MWT. This did not happen.

(4) Mr Singh further claimed that the reference to him as the Site Supervisor or Team Leader recorded on the WPP were not there when he signed it at the time. Putting aside this conflict with his 'Show Cause' response, that he did sign the WPP, this is just nonsense. In my view, this claim was intended to minimise his senior role in the Team. Is it seriously suggested that the Commission would accept that the WPP was deliberately 'doctored', by a person unknown, to imply Mr Singh was the most senior person that day, rather than as he would have me believe, that he simply followed Mr Lynn's directions? While I accept that the Level 3 Report said that there was potential confusion as to who was in charge that day, Mr Singh's evidence does not disclose any confusion on his behalf. It suited his future narrative to insist Mr Lynn was in charge.

(8) In oral evidence, Mr Singh claimed he had questioned Mr Chawdhury about the work, before they commenced working. However, in the Interview with the OHRSR at Q192 he said 'No questions' were asked. Ms Walker's handwritten notes also confirm no questions were asked. In my opinion, this was a false post-construction of events, in order to put Mr Singh in a favourable light, as to him questioning the correctness of the WPP, when he did not do so.

(9) Mr Singh's further attempts to reconstruct the events of the day in order to put himself in the best possible light, can be seen in numerous places in his witness statement when for the first time he raises explanations that he had not raised at any time previously. These include the following:

(a) While claiming he had a perfect memory of what happened on 1 August 2015, he had to change his oral evidence that he had not seen the Level 3 Report, when it was pointed out in his statement he had seen the Report (Exhibit B para 28).

(b) Mr Singh claimed he was an 'outsider' unfamiliar with the track at Allawah, yet elsewhere he said he knew about the local arrangements for the area (Exhibit B para 24). For the first time, he mentions an additional Lookout (Mr Lynn).

(c) Critically, the applicant claimed he had asked Mr Chawdhury if he had checked the HRCLR. This was never mentioned in his Level 3 Interview, the Regulator's Interview or in his 'Show Cause' response. This again is a false attempt to deflect all responsibility onto Mr Chawdhury, while attempts to absolve himself from his obligation to question and agree with the WPP (Exhibit B para 40).

(d) At paras 35-37 of Exhibit B, Mr Singh recounts a conversation with Mr Lynn and Mr Chawdhury, which had not been mentioned before. Assuming the conversation occurred, it is inconsistent with his claim that he was not in charge. The conversation most certainly appears to be the applicant directing Mr Lynn and Mr Chawdhury. The applicant claimed that it was not until he was dismissed (many months after the incident) that he recalled all the details. I do not accept this evidence or Mr Singh's explanations. Mr Fagir submitted that the new explanations arose from new allegations. This submission cannot be accepted. Accepting Mr Fagir's description of this matter not being very complicated, the issue is the conduct of Mr Singh in two incidents on 1 August 2015. Mr Singh knew exactly what was alleged against him in both the interviews in the Level 3 Investigation and the Regulator's Investigation and in his response to the 'Show Cause' letter. Nothing of any significance arose subsequent to those events.

[321] It seems to be that these examples (and others) of non-explanations were in response to Sydney Trains' evidence which had been filed first in these proceedings. Mr Singh had to reconstruct his case in order to fit the narrative of his insistence of innocence and in light of compelling corroborative evidence which did not help his case.

[337] Sydney Trains is a large rail industry employer. It is required by the Regulator and its own policies and procedures to have a paramount focus on safety. Accordingly, it has a detailed and comprehensive suite of policies and procedures relating to safety incidents, investigations and disciplinary procedures. While I do not find any procedural unfairness issues in this case, it is incumbent on the Commission to express its concern at the length of time between the incidents on 1 August 2015 and the applicant's dismissal on 30 November 2016. My concern was acknowledged by Mr Seck on behalf of Sydney Trains.

[338] Of course, I accept unreservedly, that there are complex, cross-functional processes in respect to rail incident investigations and disciplinary processes which must be followed according to specific timeframes. Ultimately, this is in order to ensure thorough and fair outcomes for those involved. However, I cannot accept that it is in the interests of justice, or in the public interest, to have a period of over 16 months between related incidents on a single day, to Mr Singh's dismissal.

[339] I do not apprehend Mr Fagir's case to include criticism of the lengthy period of time dimming the memory of witnesses as to what happened on the day (indeed the applicant claimed he had a near-perfect memory of what occurred). However, delays of this length will invariably test the memories of witnesses to the incidents, which of themselves were a matter of only a few minutes' duration. There is also the stress, anxiety and uncertainty for the individuals involved as to whether their employment will be ended, or they will be otherwise disciplined. In addition, directing employees onto paid suspension for many months, could hardly be said to be an efficient or productive use of taxpayers' money provided by the State to fund a public utility, such as Sydney Trains.

[340] Similar views were expressed by the South Australian Independent Commission Against Corruption, Hon Bruce Lander QC, in his 2015/2016 Report to the South Australian Parliament. At page 54, Mr Lander said:

[343] In essence, Mr Singh's differential treatment argument really stems from his overriding submission in this case, that he had done nothing wrong in the incidents on 1 August 2015. In these circumstances, it seems logical to assume that Mr Singh would not have accepted any other disciplinary outcome, had Sydney Trains decided to take a decision, other than dismissal. When viewed in this way, it is curious that such a submission would be seriously put. In addition, I do not accept Mr Singh was 'singled out' compared to the others in the Team. Mr Chawdhury, of course, was also dismissed, and on one view, it may be said Mr Chawdhury's culpability was not as egregious as Mr Singh's. Mr Kolevski and Mr Ivanovski were demoted. It is apparent Mr Singh's main criticism, concerns Mr Lynn's penalty of a reprimand.

[344] At [285] Mr Seck identified the factors which differentiated the disciplinary outcomes between Mr Lynn and Mr Singh. In my view, these factors form a sound basis to conclude Mr Lynn's reprimand was reasonably open to Sydney Trains. To suggest otherwise is not comparing 'apples with apples'. Overall, I consider Sydney Trains' approach to penalty for all members of the Team, to have been reasonable and proportionate.

[345] I have taken into account Mr Singh's very long period of exemplary service, his advanced age and unlikely prospects of alternative employment. I have earnestly grappled with the issue of whether these factors of 'harshness' outweigh the seriousness of the incidents on 1 August 2015, and Mr Singh's culpability in them. Regrettably, I am satisfied that they do not. On one view, an employee's long period of service will actually tell against a finding of 'harshness', where it might ordinarily be expected the employee would be very familiar with an employer's safety policies and procedures and where the employee has been properly trained and is an experienced safety officer, as was Mr Singh. In short, a long serving employee would be expected to know better.

[346] Even if these 'harshness' elements tipped the balance in favour of an unfairness finding, Mr Singh seeks a remedy nothing short of full reinstatement. Reinstatement, in my view, would be utterly unthinkable in circumstances where he refuses to accept any responsibility at all for the incidents of 1 August 2015 and casts the entire blame on Sydney Trains and his fellow employees. There was not a skerrick of remorse - no regret for his actions - no apology - no contrition.

[347] A recent Full Bench decision of the Commission in Hatwell v Esso Australia Pty Ltd t/a Esso [2019] FWCFB 2895 granted permission to appeal on two public interest grounds; one being:

Parties

Applicant/Plaintiff:

Subeg Singh

Respondent/Defendant:

Sydney Trains [2019] FWC 182

Legislation Cited (4)

Work Act 2009

Service Leave Act 1995

Compensation Act 1987

Health and Safety Act 2000

Cases Cited (7)

Subeg Singh v Sydney Trains [2019] FWC 182 (21 June 2019)

[1] Mr Subeg Singh had been employed by Sydney Trains, or its predecessor entities for 34 years from 9 June 1982, until he was dismissed on 30 November 2016. At the time of his dismissal, Mr Singh was 76 years old and was employed as a Team Leader, Track and Structures, based at Sutherland, New South Wales, under the Sydney Trains Enterprise Agreement 2014 (the 'Agreement').

[2] Shortly stated, Mr Singh was dismissed for various breaches of the Transport for NSW Code of Conduct arising from his alleged involvement in two separate serious safety incidents on 1 August 2015 on the rail tracks at Kogarah and Allawah. It will be immediately apparent that the period of time from the incidents for which Mr Singh was dismissed until his actual dismissal was 16 months. During this period, he remained suspended on pay. I shall say more about this unsatisfactory delay in dealing with this matter later in this decision. Nevertheless, it is accepted there were a number of internal investigations by Sydney Trains (notably, the Level 5 and Level 3 Investigations), a National Rail Safety Regulator Investigation, internal disciplinary processes according to the Agreement and a final review of the dismissal decision by Transport for New South Wales (30 November 2016). All of these processes involve strict timelines in order to ensure that a dismissed employee is afforded procedural fairness. I note that up until the point of the final review of Transport for New South Wales in October/November 2016, it appears Mr Singh was advised and represented by the Rail, Tram and Bus Union (the 'Union').

[3] On 24 October 2016, Mr Singh filed an application, pursuant to s 394 of the Fair Work Act 2009 (the 'Act') in which he seeks orders of the Fair Work Commission (the 'Commission'), for an unfair dismissal remedy, pursuant to s 392 of the Act; namely reinstatement and lost remuneration. It will be seen that the unfair dismissal application was actually filed before the dismissal decision was confirmed by Transport for New South Wales and his dismissal had taken effect. However, by the time the application came before a Fair Work Commission Conciliator on 14 December 2016, Mr Singh had been dismissed. Sydney Trains took no issue with the application being accepted, notwithstanding the obvious filing defect. The application was referred to me for hearing following the unsuccessful conciliation.

[4] On 23 December 2016, in accordance with my usual practice, I issued directions for a hearing of the merits of the application on 20 and 21 February 2017 and conducted a face-to-face conciliation conference on 10 January 2017. At this conference it was apparent that Mr Singh was not interested in any monetary settlement. The only remedy he sought, and which he has consistently maintained, is to be reinstated to his former position, with the payment of lost remuneration. Similarly, Mr Singh has consistently insisted that he had not breached the Code of Conduct, he was not responsible, in any way, for the two incidents on 1 August 2015 and given his age, the unlikelihood of him finding alternative employment and his length of unblemished service, his dismissal was 'harsh, unjust and unreasonable' within the meaning of s 387 of the Act.

[5] Regrettably, Mr Singh's application was not heard until 9 April 2018 and a decision was reserved on 20 August 2018. This delay was due to a number of factors, including a change to Mr Singh's first legal representative, changes in his subsequent legal representatives, and offers to settle the matter which were not accepted. This resulted in preliminary proceedings and a decision as to whether a binding settlement had been made; see: Singh v Sydney Trains [2017] FWC 4015. An appeal of this decision was upheld and the matter remitted to me for hearing; see: Singh v Sydney Trains [2017] FWCFB 4562. There were also a number of disputed Notices to Produce and Notices to Attend proceedings.

[6] The merits arbitration was finally conducted over eight days, including a site inspection on 6 April 2018. Mr O Fagir, of Counsel appeared for Mr Singh and Mr M Seck, of Counsel appeared with Ms A Sharp, Solicitor (Bartier Perry) for Sydney Trains. Both parties were granted permission to be represented by lawyers, pursuant to s 596 of the Act. I am bound to record my deep appreciation to both Counsel for the incredible preparation involved in understanding and presenting complex, detailed technical material in the context of the statutory provisions the Commission is required to apply in this case. If ever there was case which demonstrated the invaluable assistance the Commission receives from competent, focused and well-prepared lawyers, this must be it.

(1995) 185 CLR 410

(1938) 60 CLR 336

(1992) 110 ALR 449

(1995) 62 IR 371

(1995) 60 IR 1

Subeg Singh v Sydney Trains [2019] FWC 182

At a glance

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Judgment (356 paragraphs)