d) The Applicant's assertion that he was concerned about social distancing rules being breached, and saliva spraying from the Offender's mouth, is not consistent with the conduct of the Applicant in his altercation with the Offender.

e) The Applicant and the Offender were of similar physical stature. If anything, the Applicant was heavier set than the Offender.

f) The Applicant was the aggressor, who, despite being followed and pursued by the Offender, initiated all of the physical assaults against the Offender.

g) There were a number of instances during which the Applicant could have de-escalated the situation, if the Applicant was indeed afraid for his safety, by entering the Station Duty Manager's Office.

h) The Applicant's engagement with the Offender was "completely disproportionate" to the situation he faced.

• i) The Applicant has undertaken de-escalation training (and even made reference to the SAFER model in his reply submissions during the disciplinary process).[71]

• j) The Applicant, in engaging in the manner that he did with the Offender, placed himself and others at a significant and unnecessary risk.[72]

[62] In my view, there are a number of aspects of Mr Merrick's evidence (going to the Respondent's reasoning in forming the view to dismiss the Applicant) that are of concern and/or troubling. I say this not because Mr Merrick is other than a witness of truth, but because his (or the Respondent's) reasoning process fails to have proper regard to the totality of the circumstances confronting the Applicant in his interaction with the Offender on 29 July 2022, and the Applicant's claims as to self-defence. In this regard:

• a) In making the decision to dismiss the Applicant, Mr Merrick (and the DRP) did not consider any witness evidence, beyond that of the Applicant.[73] Likewise, in these proceedings, the Respondent has not relied upon any witness evidence from persons (such as the Duty Manager) who witnessed the interaction between the Applicant and the Offender on 29 July 2022. The failure to call witness evidence from persons (such as the Duty Manager) who witnessed the interaction, and allow that evidence to be tested at the hearing, is completely unexplained.[74] I draw the inference that such evidence would not have assisted the Respondent in its case before this Commission.

• b) Mr Merrick considered that a Sydney Trains or NSW TrainLink employee, whether on or off duty, would have access to any area in a train station (falling under Sydney Trains), including the ability to take safe refuge in a Duty Manager's office. However, Mr Merrick was not familiar with Bankstown Station as it relates to Sydney Trains or TrainLink employees, was not aware whether a Sydney Train or TrainLink employee would be in a position to unlock any relevant doors to obtain such access for refuge purposes, and was not aware if any special arrangements needed to be in place to obtain such access for refuge purposes.[75]

• c) The SAFER model, being one of the policies Mr Merrick took into account in determining to dismiss the Applicant,[76] does not:

• i. allow for a physical intervention by an employee for any reason (including to defend themselves);[77] or

• ii. consider or apply concepts or principles concerning self-defence and/or provocation.[78]

• d) Mr Merrick does not condone violence in any circumstances.[79] In other words, taking such a position at face value, the circumstances of a violent interaction are irrelevant. It is not clear to me how such a position is valid, fair, or practicable.

• e) Mr Merrick during cross-examination gave evidence that he did not rely upon any audio of the interaction ("The decision that I came to didn't depend on audio at all").[80] In re-examination, Mr Merrick's evidence was that he did rely upon audio of the interaction.[81] Whilst the discrepancy in Mr Merrick's evidence is clearly one of confusion,[82] the upshot of Mr Merrick's evidence is that he relied upon audio of the interaction to conclude that the verbal interaction between the Applicant and the Offender was passive (or not aggressive): "It appeared to me like quite a passive conversation. So yes, that's - that's the reference I make around audio".[83] I do not accept Mr Merrick's evidence in this regard. In short, I do not accept this evidence of Mr Merrick in circumstances where the Applicant has given uncontested evidence that the Offender was being aggressive in his verbal engagement with the Applicant, the Station Footage contains no audio, the Snapchat Footage is incomplete, and Mr Merrick has not relied upon any witness evidence of persons (such as the Duty Manager) to determine the nature or extent of any verbal aggression being engaged in by the Offender towards the Applicant.

[63] On 29 July 2022, the Applicant was on his way to work. He entered Bankstown Railway Station at 3:17pm, to catch a 3:22pm train (i.e. he had a five minute window to get from the station concourse to the train platform).

• [64] Despite the incident itself having a sufficient connection to the Applicant's work, he was not at work, but was going to work. Bankstown Railway Station is not his place of work. It is not a place at which the Applicant is a member of staff on shift, or a place that the Applicant has access to staff or non-public rooms or facilities. There is no suggestion on the evidence that an off duty employee of the Respondent is able to casually wander into (or otherwise access) staff facilities at any train station, or carries keys or passes (or alike) to access same.[84] The Applicant's familiarity with Bankstown Station does not change this.[85]

• [65] As he was entering Bankstown Railway Station on 29 July 2022, the Applicant apprehended being tripped from behind by a person unknown (and unidentified) to him.[86] Upon turning to attempt to clarify what had just occurred in respect of this trip, the Applicant was confronted by a male (the Offender) standing in close (face-to-face) proximity to his person (i.e. in breach of the 1.5 metre Safe Distance Rule, and close enough for the Applicant to see (or apprehend) saliva droplets, and sample the Offender's foul breath).

[66] The Applicant initially invites the Offender to move on past him on two occasions, but the Offender remains defiant, and does not move on. It is apparent that the Offender seeks to have the Applicant move on, and follow him. It is equally apparent that the Applicant is not willing to:

a) place himself in a position (with his back to the Offender whilst walking away) that might result in the Offender going out of his line of sight, or the Applicant being (without warning) struck in the back, or the back of the head; or

• b) enable the Offender to position himself in such a way that the Applicant's ability to defend himself (on zero or short notice) is compromised (e.g. by having to turn around to deal with an attack, as opposed to facing the attack (and attacker) front-on the moment that an attack commences).[87]

[67] The Applicant yet again steps away from the Offender, and towards the ticketing gates (i.e. subtly attempting to end the interaction), but the Applicant finds himself still in close proximity to the Offender who:

[68] At this juncture, it is appropriate to note that the Applicant, in attempting to transit to work on 29 July 2022 via Bankstown Railway Station (with only five minutes to catch his train), is suddenly and unexpectedly confronted by a male who is not known to him, presenting in an angry and agitated (and possibly confused or delusional) state, breaching the Safe Distance Rule, invading the Applicant's personal space (with saliva droplets and poor oral hygiene), refusing to move on or away despite being asked to do so, and swearing at and slandering the Applicant (with terms such as a "fucking cunt", "dickhead", and "terrorist") whilst at the same time asking the Applicant to "kill me, kill me, I want you to kill me". And all of this is occurring in the few minutes of the first point in time that the Applicant and the Offender make each other's acquaintance.

[69] The physical melee that ensues between the Applicant and the Offender commences (and arises) in the foregoing context. It is equally appropriate to appreciate (or accept) that the foregoing context also extends to encompass the Applicant's own subjective thoughts or concerns as to the situation he found himself in, based upon his perceptions of the interaction. In this regard, the Applicant highlights that he:

a) does not know, and has never seen nor met the Offender (i.e. the Applicant did not know if the Offender had a violent criminal record, or was on bail for a violent offence, or holds violent tendencies arising from, for example, drug or alcohol intoxication/addiction/abuse, personality disorder, conspiracy theories, and/or mental illness).

b) had not been involved in an interaction such as this before;

• c) felt threatened, provoked and alone;[88]

d) considered himself to be in danger (as the Offender's voice and body language were indicating to the Applicant that the Offender was getting more and more angry and upset as the seconds ticked over);

e) was anxious and concerned about catching COVID-19 (and bringing it home to his family);

• f) was concerned that the Offender may be carrying a weapon (or sharp object);[89] and

• g) was stressed about being called a terrorist by the Offender (noting that the Applicant is Muslim).[90]

[70] Despite the Duty Manager being present and witnessing the initial interaction between the Applicant and the Offender, at no point does he seek to intervene or say anything. When the interaction escalates and turns physical, rather than remaining present, or offering the Applicant the opportunity to take refuge in the Duty Manager's office, the Duty Manager retreats (vanishes) and shuts the door to his office. This leaves the Applicant all alone to deal with the Offender, and without any secure place to escape to.

[71] Turning back to the reasoning of Mr Merrick (and the DRP), I make the following points:

a) The fact that the interaction between the Applicant and the Offender was witnessed by members of the public, and a video clip (edited and reproduced) was uploaded onto social media, does not change the circumstances or the context of the interaction itself. In other words, the issue for determination is whether the Applicant was acting in self-defence, not whether a video of the interaction found its way onto social media. This is especially so in circumstances where the Snapchat Footage does not accurately portray the totality of the events that occurred. If the Respondent is so concerned about its public image, it has the ability to issue a media statement advising that the Snapchat Footage is inaccurate to the extent that it purports to represent the totality of the CCTV video footage, and perhaps say something about its employees being subjected to aggression and bad conduct from members of the public.

b) It is not clear to me how the Applicant's concerns about catching COVID-19 from the Offender are inconsistent with the Applicant's conduct in his interaction with the Offender, or ought be minimalised. Simply because the Applicant had to take certain actions to defend himself, does not undermine his (in my view genuine) concerns about catching COVID-19 (or any other respiratory illness) from the Offender (who is unknown to him). As it turns out, only two days after the interaction, the Applicant tested positive to COVID-19, and was required to self-isolate.

• c) I do not accept that there were a number of instances where the Applicant could have deescalated the situation, and/or escaped to the Duty Manager's office. The CCTV video footage shows that the Applicant did attempt to diffuse or deescalate the situation by asking the Offender to move on, but the Offender would not move on. The CCTV video footage also shows that the Duty Manager retreated to his office and shut the door. Nowhere in the evidence is there a suggestion that there was a place (other than the Duty Manager's office) for the Applicant to escape to.[91] The only point in the CCTV video footage where it is clear that the Applicant had a chance to 'escape' is after the physical altercation with the Offender, where the Applicant can be seen standing in close proximity to the ticketing gates. The fact that the Applicant did not proceed through the ticketing gates at that time, however, is wholly explained by the fact that the Applicant's sunglasses had been dropped on the ground and he needed to retrieve them (i.e. he did not want to lose a pair of $350 sunglasses, and needed them to perform his shift).[92]

d) When an employee is confronted by someone exhibiting anti-social behaviours or engaging in harassment or threats of violence, workplace training and "general instructions" will be of assistance. However, whether or not that training will achieve its desired outcomes will very much depend upon the circumstances, including the manner in which the offender decides to act or respond. In this case, the evidence does not disclose that the Applicant had a place to escape to, or take refuge, from the Offender. Despite the Duty Manager being well aware of the Applicant's predicament, he provided no assistance to him. In other words, the core aspects of the SAFER model simply did not apply. Further, there is no evidence before me from the Duty Manager, explaining:

1. why the Duty Manager chose to retreat into the Duty Manager's office and close the door, thus closing off an available escape route or place for the Applicant to take refuge;

1. why the Duty Manager did not provide, or offer the Applicant, any assistance (verbally or physically), but left the Applicant totally alone on the Station concourse to deal with the Offender; and

1. what actions the Duty Manager took to call for assistance for the Applicant, and/or why such assistance was not forthcoming.

• e) The training that was provided to the Applicant prior to his interaction with the Offender on 29 July 2022 (in terms of dealing with violent or anti-social behaviours by members of the public) can hardly be said to be extensive or comprehensive. The evidence discloses that apart from a training session in April 2017 (dealing with challenging situations), the Applicant attend a General Instruction session (before work one day) in September 2021.[93]

f) The Respondent's claim that the Applicant was the aggressor, who initiated all of the physical assaults against the Offender, ignores all of the circumstances (and the context) in which the interaction between the Applicant and the Offender occurred. It is equally relevant to note that:

• i. whilst the Applicant did initially kick at the Offender, this kick is explained by the Applicant as one that he intended to feign (i.e. a mistake);[94]

1. when the Applicant slapped the Offender across the side of the head, grappled with his head, and pushed him back to the ground, the Applicant's evidence is that he was concerned that the Offender was attempting to get up to engage in a further physical interaction, or might spit at, or bite, him;

1. the video footage shows that whilst the Applicant is grappling with the Offender's head, the Offender has his arms around the Applicant's legs. Short of letting himself be tackled around the legs, it is not clear to me exactly what the Applicant should have done differently (I say this even with the benefit of hindsight, which the Applicant did not have at the time);

1. during the physical interaction between the Applicant and the Offender, I do not observe the Offender showing any signs that he is giving up, or that he considers the interaction with the Applicant to be at an end. Again, it is worth highlighting at this point that the Applicant:

• is still dealing with the Offender on his own, and attempting neutralise the physical threat posed by the Offender and/or place himself in a position that he considers safe to escape from the Offender; and

• does not have a place at which he can take refuge (with the Duty Manager's office door remaining shut).

g) The test to be applied in a case of self-defence is a general test of reasonableness (or reasonable proportionality) in the circumstances as perceived by the accused (in this case the Applicant). There was no supervening event in the interaction between the Applicant and the Offender (like the production of a knife or a gun, or a knockout punch), such that a 'blow by blow' analysis is warranted to the extent that one particular blow (or action), in my view, can be said to turn the totality of the interaction from reasonable to unreasonable. This is not a case in which each blow of the melee or fracas ought be treated as a separate assault, and thereafter justified individually, such that one blow might be justified, but another or other blows are determinative of the outcome of the case adversely to the Applicant. As the case law identifies, who strikes first is not determinative, whether a retreat takes place is not determinative, and determining whether or not self-defence is excluded as an answer to an assault does not require the imposition of measurements of mathematical exactitude, or detached reflection, or the identification of exacting balances.

• [72] In its submissions, the Respondent says that none of the words said by the Offender to the Applicant during their initial interaction can be said to constitute a threat to the Applicant's person.[95] In other words, the words exchange during this initial interaction were not threatening such that the Applicant was justified in kicking the Offender, noting that this kick was the catalyst for the further physical interaction between the pair.[96] I do not accept this submission. It seeks to isolate the words used from all of the circumstances confronting the Applicant at the time he is initially confronted by the Offender (i.e. the tension (evident from the Station Footage) between the Applicant and the Offender arising from the Applicant being tripped, and the Offender standing in close proximity to the Applicant (in breach of the Safe Distance Rule), and refusing to move on despite being asked to do so). Justification, in terms of being threatened, or acting in self-defence, does not come down to whether the actual words used were or were not threatening. Indeed, a person can be threatened absent the use of threatening words, or provocative language.[97]

[73] On the evidence before me, and having regard to the submissions of the parties, I find that:

a) the Applicant was entitled (as a matter of law) to defend himself from the Offender on 29 July 2022;

b) the Respondent has failed to satisfy me on the evidence, on the balance of probabilities, that the actions of the Applicant (in his interaction with the Offender) were not undertaken in self-defence, in that the Respondent has failed to exclude the reasonable possibility that:

1. the Applicant believed (at the time) his conduct was necessary in order to defend himself from the Offender; and

1. the actions of the Applicant were a reasonable response by the Applicant in the circumstances as he perceived them to be (at the time).

1. the actions of the Applicant in respect of his interaction with the Offender on 29 July 2022 were:

1. believed by the Applicant to be necessary in the circumstances confronting him at the time; and

1. a reasonable response in the circumstances as the Applicant perceived such circumstances to be.

[74] Having made the foregoing findings, I equally find that there was no valid reason for the dismissal of the Applicant by the Respondent, in that the Respondent's reasons for dismissal (as set out at paragraph [59] of this decision) are not sound, defensible or well founded. In this regard, the Respondent's reasons:

• a) rely upon a blanket rule that violence is never to be tolerated;[98]

b) do not properly take into account all of the circumstances, including that the Applicant was (or may have been) acting in self-defence; and

1. acted inappropriately when he sought to lawfully defend himself from the Offender; and

1. breached the Transport Code of Conduct (in circumstances where the Applicant was entitled to lawfully defend himself from the Offender, and did no more than he was lawfully entitled to do in protecting himself).

[75] The absence of a valid reason in this case, leans strongly towards a finding that the Applicant's dismissal was harsh, unjust and unreasonable.

s.387(b) - Whether the Applicant was notified of the valid reason; and s.387(c) - Whether the Applicant was given an opportunity to respond to any reason related to her capacity or conduct

[76] Proper consideration of s.387(b) of the Act requires a finding to be made as to whether the Applicant "was notified of that reason" and given an opportunity to respond to same.

• [77] Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a) of the Act.[99] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, and in explicit, plain and clear terms.[100]

• [78] In order to be given an opportunity to respond for the purposes of s.387(c), the employee must be made aware of allegations concerning the employee's conduct so as to enable them to respond to the allegations and must be given an opportunity to defend themselves. As Justice Moore has stated in Wadey v YMCA Canberra[101]:

"the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That... does not constitute an opportunity to defend."[102]

[79] The Applicant was notified of the asserted reason/s for his dismissal in plain and clear terms prior to his dismissal, and given an opportunity to respond to same. I consider the criterion under ss.387(b) and (c) of the Act to be neutral considerations in determining whether the Applicant's dismissal was harsh, unjust or unreasonable.

s.387(d) - Whether there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist at any discussions relating to dismissal

1. As noted by a Full Bench of this Commission, "[t]he subsection is not concerned with whether or not the employee was informed that he or she could have a support person present".[103]

[81] The Applicant provided his responses to the allegations made against him in writing. I therefore consider this criterion to be a neutral consideration in determining whether the Applicant's dismissal was harsh, unjust or unreasonable.

s.387(e) - Whether the Applicant was warned about that unsatisfactory performance before her dismissal

[82] A warning for the purposes of s.387(e) of the Act must clearly identify:

• the areas of deficiency in the employee's performance;
• the assistance or training that might be provided;
• the standards required; and

• • a reasonable timeframe within which the employee is required to meet such standards.[104]

• [83] In addition, the warning must "make it clear that the employee's employment is at risk unless the performance issue identified is addressed."[105] In order to constitute a warning for the purposes of s.387(e), it is not sufficient for the employer merely to exhort their employee to improve their performance.[106]

[84] As the Applicant's dismissal did not relate to unsatisfactory performance (i.e. it concerned his 'conduct' on 29 July 2022), this factor is not relevant to the present circumstances.

The degree to which the size of the Respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(f)); and The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal (s.387(g))

[85] The Respondent employs dedicated human resources management specialists.

[86] There is no evidence to suggest that the (large) size of the Respondent's enterprise likely impacted upon the procedures it followed in effecting the Applicant's dismissal.

[87] Neither party put forward substantive or relevant submissions that go directly to either of the criterion under ss.387(f) and (g) of the Act. I treat both of these criterion as neutral considerations in this case.

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

[88] The evidence before me establishes that:

a) the Applicant is a long serving employee of the Respondent, with an unblemished work history and disciplinary record over a period of 20 years;

• b) the Applicant's suspension between August 2022 and March 2023 has resulted in a significant loss of income (arising from him his inability to work the overtime he normally would have worked if he had not been suspended);[107]

• c) the Applicant's dismissal (and the resulting loss of income) has had significant economic and financial consequences for the Applicant and his family (including his wife, and their three dependent children), noting that the Applicant is the sole breadwinner in his family;[108]

• d) the Applicant's suspension and subsequent dismissal has had a significant impact upon the Applicant's social interactions;[109]

• e) having worked for the Respondent as a Train Driver for the past 6 years, his ability to retrain and/or obtain other suitable or comparable employment has been limited;[110]

f) the ordeal that the Applicant has had to endure, from the date of the incident on 29 July 2022, to the date of this decision, has been extremely lengthy (noting that the Respondent took nearly seven months to investigate and ultimately dismiss the Applicant). In other words, the Applicant has basically spent a year of his life having to deal with the fallout of his rightful attempts to defend himself from an unknown member of the public on his way to work. As the Applicant states:

"I did not intend to become entangled with a person from the public on this day, or ever, and I wish it had not happened. I have paid a price for the incident with stress and anxiety, COVID, and the following investigation. This has impacted on my family and my health."[111]

• g) The Applicant has expressed his deep sorrow and remorse for the incident, including for any negatives that have been brought to bear on the business of NSW Trains.[112]

[89] In my view, all of the foregoing matters weigh in favour of a finding that the Applicant's dismissal by the Respondent was harsh, unjust and unreasonable.

• [90] During cross-examination, the Respondent raised with the Applicant the fact that, in his email sent at 3:29am on 30 July 2022 (around 12 hours after the incident on 29 July 2022), he stated that he had not hit, hurt, kicked or punched the Offender. The Applicant's evidence is that at the time he sent this email he had been involved in the incident, had then worked his shift, had thereafter attended upon the police station to make a statement, and was writing the email at 3:00am with the assistance of his son. He says that when he wrote the email he thought it to be correct, but had not seen the CCTV video footage, and his recollection of the incident was not completely clear in terms of exactly what had happened and when.[113] The Applicant readily conceded in cross-examination that the statements he made in his email of 30 July 2022 were incorrect. In my view, the Applicant's case does not rise and fall based upon the erroneous statements he made in his 30 July 2022 email.

• [91] The Applicant (or more specifically, the RTBU on his behalf) has raised that he considers a motive for the Offender engaging with him on 29 July 2022 relates to statements made by the Premier and other NSW Government Ministers labelling rail workers engaging in protected industrial action as "industrial terrorists:, "economic bastards" and "un-Australian".[114] There is no evidence before me of any causal link or motivation in this regard by the Offender.

• [92] Mr Matthews, on behalf of the Applicant, also pointed to the Applicant's Muslim faith and middle eastern heritage as heightening the nature of the Offender's provocation of the Applicant by calling him a "terrorist". However, the Applicant in his evidence did not seek to overplay this issue.[115] Rather, the Applicant's evidence highlighted that he is a person who tries hard not to offend, and tries even harder not to be offended. It is to be accepted that a person calling another person (who they do not know) a terrorist is offensive and provocative, irrespective of their religion or heritage. What motivated the Offender to make these comments to the Applicant is not apparent on the evidence, which is part of the difficulty that the Applicant faced at the time he was confronted by the Offender (see, for example, paragraph [69] of this decision).

• [93] I have made findings in relation to each of the criterion specified under s.387 of the Act (as relevant). I have also considered and given due weight to each of the criterion as a fundamental element in determining whether the Applicant's dismissal was harsh, unjust or unreasonable.[116]

[94] In relation to the criterion set out under s.387 of the Act, I have found that:

(a) various criterion (under ss.387(a) and (h)) weigh in favour of a finding that the Applicant's dismissal was harsh, unjust and unreasonable; and

(b) other relevant criterion are neutral considerations.

[95] In view of the findings and conclusions set out in this decision, I find that the Applicant's dismissal was harsh, unjust and unreasonable (i.e. unfair).

(a) has made a valid application for an order granting a remedy under s.394 of the Act;

(b) was a person protected from unfair dismissal; and

(c) was unfairly dismissed within the meaning of s.385 of the FW Act,

I may, subject to the Act, order the reinstatement of the Applicant, or the payment of compensation to him.

[97] Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:

1. I am satisfied that his reinstatement is inappropriate; and

1. I consider that an order for payment of compensation is appropriate in all the circumstances of the case.

[98] The Applicant seeks reinstatement, continuity of service, and restoration of lost pay. He makes the following submissions in support of such remedies:

"31. Reinstatement is the primary remedy for unfair dismissals under the FW Act. Pursuant to s 390(3)(a), there must be a finding that reinstatement is inappropriate before the Commission has power to make an order for compensation. The relevant question,

therefore, in determining whether to order reinstatement in relation to an unfair dismissal is whether reinstatement is appropriate in the particular case.

32. A salient factor in determining whether reinstatement is appropriate is whether there has been a loss of trust and confidence in the employment relationship. Whether there has been a loss of trust and confidence is an objective matter.

33. Reinstatement is manifestly appropriate in the current case. There are, in fact, no compelling factors which would make reinstatement impracticable. The following factors weigh in favour of this conclusion:

a. Mr Al-Buseri has been a loyal and long-serving employee of the Respondent, and had a perfect employment record over his 20 years' service;

b. Mr Al-Buseri's conduct was out-of-hours and had nothing to do with his duties as an Intercity Train Driver;

c. the Respondent is a substantial employer and is doubtless able to accommodate Mr Al-Buseri's reinstatement. Further the Respondent, and its related entities in which it is engaged in a common-enterprise, are the only employers of passenger train drivers in NSW35 - presenting a difficulty in finding alternative employment;

d. the Respondent bears some responsibility for the violent rhetoric used by Transport Officials to describe Mr Al-Buseri and others during their Industrial campaign that seemed to precipitate this confrontation;

e. there is no evidence to demonstrate that Mr Al-Buseri would ever engage in the conduct for which he was terminated ever again; and

f. Mr Al-Buseri was cooperative, consistent, honest, polite and forthright throughout the investigation process.

34. In the interests of achieving a fair go all round, the Commission should reinstate Mr Al-Buseri, with orders for continuity of employment and restoration of lost pay."[117]

[99] The Respondent opposes the Applicant's reinstatement, and makes the following submissions:

"53. NSW TrainLink's primary submission is that the Commission will not find the dismissal of the Applicant to be unfair. In those circumstances, there is no basis to order any remedy (s 390(1)(b)).

54. Against that primary submission, NSW TrainLink submits that the Commission should not order the reinstatement of the Applicant. It submits that it is inappropriate as reinstatement is impracticable in all of the circumstances. NSW TrainLink's evidence is that it cannot be satisfied that the Applicant would not engage in similar conduct in the future. Given the amount of training the Applicant had and his extensive experience in customer service roles, that demonstrates a breakdown in trust it once had with, and in, the Applicant. NSW TrainLink's view was fortified by the Applicant's lack of understanding and implementation of appropriate deescalating techniques with him instead resorting to physical violence. Those concerns are sound and rationally held on the evidence before the Commission."[118]

[100] The only evidence led by the Respondent, as to the reinstatement of the Applicant being inappropriate and impracticable, comes from Mr Merrick, who states:

"33. I understand that in his application to the Fair Work Commission, Mr Al-Buseri has sought reinstatement into his role. I do not believe that it would be appropriate for Mr Al-Buseri to be re-instated into his position with NSW TrainLink because I have no way of knowing whether Mr Al-Buseri will revert to using physical violence if he was faced with a similar situation. I cannot expose our customers and staff to the risk that he will conduct himself in the same (or similar) way again.

34. Further, I believe that Mr Al-Buseri's submissions to the DRP and his Witness Statement demonstrate that he still considers that he is the victim of an attack or physical assault. In my view, and based on the CCTV video footage of the relevant incident, if there was a victim in that altercation, it was not Mr Al-Buseri and his lack of insight about the proportionality of his response to the situation re-affirms to me that the decision to terminate his employment was the appropriate disciplinary action in this case."[119]

• [101] The principles espoused by the Full Bench decision in Nguyen v Vietnamese Community in Australia[120] are relevant:

"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

• The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

• The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party".[121]

• [102] I observe that none of the managers or supervisors who had responsibility for the work of (or worked with) the Applicant were called to give evidence about their views on his reinstatement.[122] The analysis of Gray J in AMIEU v G&K O'Connor Pty Ltd[123] is thus germane to the present case:

"The law relating to the need for trust and confidence in an employment relationship was developed at a time when employment invariably involved a close personal relationship between employer and employee. The advent of corporate employers has diminished the importance of this element of the employment relationship. A corporation has no sensitivity. The crucial question must be what effect, if any, loss of trust by a manager in an employee is likely to have on the operation of the workplace concerned. It might be more significant, for instance, to know the name of Mr Voss's immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters".[124]

[103] I am not satisfied that reinstatement is inappropriate in the circumstances of this case, for the following reasons:

a) the Applicant is a long serving employee, with an unblemished employment record;

b) I have found that there was no valid reason for the Applicant's dismissal;

1. the interaction between the Applicant and the Offender on 29 July 2022 is appropriately classified as an extraordinary or one off incident;

d) I have found that the Applicant was entitled to defend himself in his interaction with the Offender on 29 July 2022, notwithstanding the views of Mr Merrick that violence in the workplace is not to be tolerated under any circumstances, and notwithstanding that the Respondent's policies and procedures (including the Transport Code of Conduct) do not make mention of an employee's right to self-defense;

• e) the fact that the Applicant holds the view that it was appropriate to defend himself from the Offender on 29 July 2022 is a view he is entitled (rationally) to hold;[125]

• f) the fact that the Applicant holds the view that he would consider it appropriate to defend himself again if he was attacked by another person is a view he is entitled to hold, and is consistent with the law of self-defense;[126]

• g) the fact that the Applicant holds the view that he has been failed by management because they failed to provide appropriate safety and security measures to protect him from the Offender, and instead suspended him from duties and terminated his employment, is a view that the Applicant rationally holds.[127] It is not a view directed to any specific individual, let alone an individual that he works with. I do not accept that because the Applicant holds this view, it is something that weighs against his reinstatement (or makes his reinstatement inappropriate); and

h) post the Applicant's dismissal, there is no evidence of any animosity between the Applicant and any individual in the Respondent's employ.

[104] In the circumstances, I find that there is no sound or rational basis for concluding that it is inappropriate to restore the employment relationship. To the contrary, I consider that reinstatement is manifestly appropriate and should be ordered. I am equally of the view that in ordering the Applicant's reinstatement, that orders for backpay and continuity of service should also be made.

• [105] On the issue of backpay (or remuneration lost), I consider it appropriate to place the Applicant in a position that he would have likely been in had he not been dismissed.[128] The order I will make is for backpay to be in the amount (or at the rate) that the Applicant would have received but for his dismissal, based upon his average weekly earnings (including overtime and/or penalty rates) in the six months prior to his suspension on 8 August 2022, less any income earnt by the Applicant between 3 March 2022 and the date of his reinstatement.

[106] In all the circumstances, my evaluative assessment is that the appropriate remedy in this matter is an order under s.391(1)(a) of the Act, reinstating the Applicant to the position in which he was employed immediately before his dismissal, namely as an Intercity Train Driver. I also consider it appropriate to make an order under s.391(2) of the Act as to continuity of employment, and an order under s.391(3) as to lost remuneration, being remuneration lost by the Applicant between the date of his dismissal and the date he is reinstated.

[107] Section 381(2) of the Act is a significant overarching object of Part 3-2 of the Act. It is expressed as follows:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

• (2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in Re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95."

[108] In my judgment, the outcome in this case is consistent with the object of Part 3-2 of the Act of providing a 'fair go all round' to both the applicant and the employer.

[109] Separate Orders will be issued giving effect to this decision.

Mr Peter Matthews, Legal Officer, Rail, Tram & Bus Union, appeared for the Applicant.

Mr Jamie Darams, of Counsel, instructed by Ms Katie Kossian, Senior Associate, Maddocks lawyers, appeared with permission on behalf of the Respondent.

[7] That is, prior to the incident on 29 July 2022 with an unknown and unidentified member of the public that led to his dismissal.

[8] As opposed to NSW Trains, the Applicant's employer.

[9] Exhibit A1, Applicant Statement, 16 May 2023, at [21] to [23], Court Book, p.56.

[10] I note that whilst the Applicant regularly travels or transits through Bankstown Railway Station (Transcript, PN110-PN111), he had never before seen the Offender there, or anywhere else (Court Book, p.73, at page point 0.3).

[12] Exhibit R1, at [18], Annexure 'DM3' (Station Footage).

[13] Exhibit R1, at [19], Annexure 'DM4' (Snapchat Footage).

[14] This evidence of the Applicant is not contested. Mr Merrick's evidence is that he does not know what was said during the Applicant's initial interactions with the Offender, and the Respondent has not relied upon any evidence from a person who was present (e.g. the Station Duty Manager).

[15] Exhibit R1, at [19], Annexure 'DM4' (Snapchat Footage).

[16] This evidence of the Applicant is not contested. Mr Merrick's evidence is that he does not know what was during the Applicant's initial interactions with the Offender, and the Respondent has not relied upon any evidence from a person who was present (i.e. the Station Duty Manager).

[17] Exhibit R1, at [19], Annexure 'DM4' (Snapchat Footage).

[18] This evidence of the Applicant is not contested. Mr Merrick's evidence is that he does not know what was said during the Applicant's initial interactions with the Offender, and the Respondent has not relied upon any evidence from a person who was present (i.e. the Station Duty Manager).

[19] Exhibit A1, at [43] to [54], Court Book, pp.58-59.

[20] Exhibit R2, Letter from Mr Wayne Powell, Senior Investigations Officer to the Applicant, dated 7 September 2022.

[21] Exhibit A1, at [40], Annexure "C", Court Book, p.58, and pp.72-76.

[22] Exhibit R1, Merrick Statement, 30 May 2023, Annexure 'DM5', Court Book pp.144-147. I note that this letter states that the Applicant's response was considered, however, there are no details (in the Respondent's correspondence before me) as to the basis upon which the issues raised by the Applicant in his response were fully considered or otherwise fully evaluated by the Respondent.

[23] Exhibit R1, Merrick Statement, 30 May 2023, Annexure 'DM6', Court Book pp.148-151.

[24] Exhibit R1, Merrick Statement, 30 May 2023, Annexure 'DM7', Court Book pp.152-154. I note that this letter states that the Applicant's response was considered, however, there are no details (in the Respondent's correspondence before me) as to the basis upon which the issues raised by the Applicant in his response were fully considered or otherwise fully evaluated by the Respondent.

[25] Exhibit R1, Merrick Statement, 30 May 2023, Annexure 'DM8', Court Book pp.155-157.

[26] Exhibit R1, Merrick Statement, 30 May 2023, Annexure 'DM9', Court Book pp.161-162. I note that this letter states that the Applicant's response was considered, however, there are no details (in the Respondent's correspondence before me) as to the basis upon which the issues raised by the Applicant in his response were fully considered or otherwise fully evaluated by the Respondent.

[27] [1998] AIRC 1592.

[28] R v Burstow; R v Ireland [1997] UKHL 34; [1998] 1 AC 147.

[29] Exhibit A1, Annexures "B' and "C", Court Book, pp. 66-76.

[30] Form F2 Unfair Dismissal Application, Item 3.2.

[31] See Newton v Toll Transport Pty Ltd [2021] FWCFB 3457; , at [171]-[176] (and the authorities cited therein).

[32] Palmer v R [1970] UKPC 2; [1971] AC 814 (approved in R v McInnes 55 Cr App R 551).

[34] See Crimes Amendment (Self-Defence) Act 2001 (NSW).

[35] R v Deana 2 Cr App R 75.

[37] R v Bird [1985] EWCA Crim 2; 81 Cr App R 110; R v Howe [1958] HCA 39: (1958) 100 CLR 448.

[38] Found at: https://www.judcom.nsw.gov.au/publications/benchbks/criminal/

[39] Ibid, at [6-450] to [6-455] (found at: https://www.judcom.nsw.gov.au/publications/benchbks/criminal/self-defence.html)

[40] [2019] NSWSC 1191.

[42] Brown v United States [1921] USSC 117; (1920) 256 US 335, at 343.

[43] Sikes v Commonwealth (1947) 304 Ky. 429; 200 SW 2d 956 (https://casetext.com/case/sikes-v-commonwealth).

[44] McCelland v Symons [1950] VicLawRp 75; [1951] VLR 157, at 171-172.

[45] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ). See also Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, at 700-702, per Starke J; Hocking v Bell [1944] NSWStRp 31; (1944) 44 SR (NSW) 468, at 475, per Davidson J. See also, Exchange Hotel Ltd v Murphy [1947] SAStRp 20; [1947] SASR 112; Teaciuc v Broken Hill Pty Co Ltd [1962] NSWR 830; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125.

[47] Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, at 700-702, per Starke J.

[48] [2013] FWC 7908, especially at [7].

[49] (1964) 38 ALJR 293.

[51] Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, at 412; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, at 204.

[52] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 361-362 (per Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).

[53] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).

1. [54]Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371, at 373.
2. [55]Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, at 685.

[56] Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836, at [7]; Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092, at [117]; Titan Plant Hire Pty Ltd v Van Malsen [2016] FWCFB 5520, 263 IR 1, at [28].

[57] King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019, Print S4213 , at [23] to [24].

[58] Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (Cth), s.140.

[59] See Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, at [171]-[176] (and the authorities cited therein).

[60] [1998] FCA 865; 84 FCR 483.

[62] Exhibit R1, Annexure 'DM5', Court Book, pp. 144-146.

[63] Ibid, at [13]-[16], Court Book, pp.112-113.

[66] Ibid, Annexure "DM2', Court Book, pp.138-139.

[67] Ibid, Annexure "DM2', Court Book, pp.140-143.

[69] Transcript, PN493; Exhibit R1, at [25], Court Book, p.114.

[71] The Applicant's reference to the SAFER model in his responses arises because the SAFER model was referred to in the Respondent's letter of allegations dated 7 September 2022 (see Exhibit R2).

[72] Exhibit R1, at [21]-[30]. Note Applicant's Response dated 30 July 2022 (Exhibit A1, Annexure 'B', Court Book, p.67.

[74] The only explanation provided by Mr Merrick as to a failure to call a witness concerns the Offender (Exhibit R1, at [32]).

[79] Exhibit R1, at [25]; Transcript, PN493.

[82] Noting that the Letter of Allegations dated 7 September 2022 (Exhibit R2) refers to words used during the interaction at Item (m).

[84] Albeit the Applicant regularly travels or transits through Bankstown Railway Station (Court Book, p.73, at page point 0.3).

[88] Ibid, PN130-PN131, PN152 and PN175. I note that provocation is not a defense. Rather, it is to be considered as part of the overall factual matrix.

[93] Compare, Transcript, PN735 and PN748.

[95] Transcript, PN681-PN685, PN690-PN692, and PN717.

[97] The Applicant's evidence is that he was called a "terrorist" during his initial interaction with the Offender: Transcript, PN94, PN141, and PN415. Compare Respondent's oral closing submissions: Transcript, PN681-PN690. See also, Transcript, PN757 and PN761.

[98] Exhibit R1, at [25], Court Book, p.114; Transcript, PN493. Compare, Transcript, PN748.

[99] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, at [55]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, at 151.

[100] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998). See also Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), at [41]; Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762 (Acton DP, Deegan C and Gregory C), at [46] to [49].

[101] [1996] IRCA 568.

1. [103] Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835, at [84].

[104] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, at [32].

[105] Fastidia Pty Ltd v Goodwin, Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), at [43] to [44].

[108] Exhibit A1, at [69]-[87], Court Book pp.61-62. Compare, Transcript, PN750-PN755, and PN765.

[110] Ibid, PN37-PN40, and PN388-PN406.

[111] Exhibit A1, Annexure "C", Court Book, p.76.

[112] Ibid. Transcript, PN435. (Compare cross-examination, Transcript, PN342, PN346-PN348, and Respondent's oral submissions, PN727-PN734. See also, Transcript, PN764).

[114] See, for example, Exhibit A1, Annexure "L", Court Book, pp.97-98.

[116] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [92]; Edwards v Justice Giudice [1999] FCA 1836, at [6] to [7].

[117] Applicant's Submissions, 16 May 2023, at [31] to [34], Court Book, pp.52-53; See also Transcript, PN613-PN675.

[118] Respondent's Submissions, 30 May 2023, at [53] to [44], Court Book, pp.108-109; See also Transcript, PN677-PN755.

[119] Exhibit R1, Merrick Statement, 30 May 2023, at [33] and [34], Court Book p.117.

[120] [2014] FWCFB 7198.

[122] Noting that Mr Merrick does not work with the Applicant, and does not suggest that he has otherwise conferred with anyone the Applicant worked with about the Applicant's reinstatement (Exhibit R1, Merrick Statement, 30 May 2023, at [4] to [6], and [11] to [12], Court Book pp.110-112). See also, Transcript, PN766-PN768.

[123] [2000] FCA 627.

[125] Transcript, PN191-PN197, PN205 and PN349-PN350.

[128] See s.391(4) of the Fair Work Act 2009.

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