HSR Reinstated

Health and Safety Representative reinstated after NSW Trains “grossly disproportionate” action

The Fair Work Commission has ordered NSW Trains to reinstate a health and safety representative after an outburst with his supervisor, and criticised the employer for adopting a “grossly disproportionate” approach to his outburst after ignoring his concerns.

The tribunal heard the HSR sent his supervisor an email last year, criticising an area manager’s conduct at a meeting after he apparently tried to start a conversation about NSW Trains “meeting its commitment” to ensure workers’ psychological safety. Referring to a workforce “pulse survey” and perceptions management had not properly considered or listened to their wellbeing concerns, he claimed the area manager shut the conversation down at the meeting in a “humiliating and downgrading manner, victim-blaming me and anyone who has completed the Pulse Check with their honest answers”. Deputy President Michael Easton said the HSR “unfortunately” did not receive any substantial response or reply to his email, which “ironically proved his point”. Given the HSR copied in the area manager and sent it in response to one of her emails, the deputy president said her decision to “not even respond to his email was appalling”. “Worse still, the area manager decided to place the HSR on a performance improvement plan [PIP] because he sent the email.”

‘Grossly Disproportionate’ Response

Noting NSW Trains invited him to respond to its draft PIP but no one appeared to read it, the deputy president said it also seemed the area manager “simply issued a directive” that the HSR must sign off on the draft without amendment. “This sequence heaped irony upon irony insofar as [the HSR’s] initial email that led to the [PIP] raised a concern that management generally, and [the area manager] in particular, did not listen in any meaningful way to the concerns of the workforce and instead victim-blamed”, he said. A day after the PIP meeting, the HSR spoke with his supervisor about the “controversial issue of the New Intercity Fleet (‘NIF’) trains” and they disagreed about whether the new technology would be safe. The HSR and the supervisor exchanged some blunt words.

Suspended for four months

NSW suspended the HSR for four months before dismissing him in October last year, after 22 years of unblemished service. Deputy President Easton said NSW Trains “could have, and should have, taken swift and decisive action to deal with” the HSR without dismissing him, and should have taken “swift steps” to restore his long-standing working relationship with his supervisor. Instead, it left the HSR “languishing under suspension for a long period of time” with his supervisor unaware of his “remorse and unconditional apology”, leading the deputy president to hold the dismissal harsh and unreasonable. Deputy President Easton said NSW Trains acted in a “grossly disproportionate” manner when it suspended the HSR and conducted a “4-month external investigation into a 4-minute incident”. He found “some force in [the HSR’s] claim that his concerns fell on deaf ears” and that the inadequacy of NSW Trains’ responses to his communications was “obvious”. While NSW Trains was entitled to have a “zero tolerance” for code of conduct breaches, he said this does “not mean that every transgression” must result in dismissal.

Manager “Not hired to be a person”

The deputy president also highlighted a “bizarre” statement made by the area manager, when asked during cross examination about her personal view of the HSR’s prior behaviour. The area manager told the tribunal she was “not hired to be a person” but was “hired to be a manager” and “therefore, I apply rules, policies, and procedures”. The deputy president said the statement “in one sense. . . reflects NSW Trains methodology for dealing with [the HSR] – it just applied rules, policies and procedures without any personal considerations”. But he said her statement was “actually a more damaging reflection of NSW Trains’ actions”. While many involved in the matter were “hired to be a manager”, he said “nobody ended up being a manager to [the HSR] because nobody was prepared to actually engage with him properly”. He said that when the HSR’s “frustrations erupted in an outburst, still nobody in his line of reporting was prepared to sit and talk to him and listen to what he had to say” but instead they “farmed [it] out” to an external investigator, and someone the HSR had never met decided to dismiss him. Deputy President Easton ordered NSW Trains to reinstate the HSR with continuity of service and backpay for lost wages.