Bullies, corrupt managers and underworld figures... but none of it was true

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Bullies, corrupt managers and underworld figures... but none of it was true

A former NSW Trains worker who accused his employer and colleagues of corruption, bullying and harassment has lost his unfair dismissal claim.

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A former NSW Trains worker who accused his employer and colleagues of corruption, bullying and harassment has lost his unfair dismissal claim.

The worker's unsubstantiated allegations included that: his co-workers could not be trusted because they had underworld associations; some managers were corrupt; the Workplace Conduct & Investigation Unit and the Disciplinary Review Panel were both corrupt, and that various managers and company institutions had bullied, victimised and harassed him.

Mr A had been employed by NSW Trains and its predecessors since 1982. Over the course of his employment he had received sanctions for breaches of the respondent’s code of conduct, including seven fines, six suspensions and three final warnings. He had also received regular training in the employer’s code of conduct.

Mr A asked on 16 December 2014 if he could take indefinite leave to go to Fiji because his father-in-law was unwell. However, there were no spare staff available to cover his shifts for about a week. He was told he could have leave from 21 December when the shifts could be covered.

On the morning of 17 December he presented for work but by 7am had left work despite being unauthorised to do so. He did not return to work until 5 January 2015.

This incident was investigated by the Workplace Conduct and Performance Unit and there was a preliminary decision to issue him with a final warning on 1 May 2015.

A few days later Mr A engaged in racial/ethnically-motivated abuse of a co-worker.

Baseless complaints


In a series of disciplinary-related email exchanges with senior managers of NSW Trains about the disciplinary procedures, Mr A alleged his co-workers and managers were bullies, corrupt, and were associating with criminals. These complaints were baseless.

It was eventually decided in June 2015 that Mr A should be suspended for two weeks without pay and should undergo counselling in diversity and inclusion awareness. He was also invited to launch formal complaints and provide evidence about bullying and corruption.

Mr A repeated these allegations over time in various workplace disciplinary meetings. Eventually, in mid-September 2015, NSW Trains’ director of people and corporate services wrote to MA noting that there had been repeated allegations, that the claims were baseless and that they should be substantiated.

He also added that any statement Mr A then made would be considered in relation to further disciplinary action, including any potential termination of employment.

Mr A responded in late September by phoning one of the senior managers and yelled his allegations down the phone at her.

The employer’s Disciplinary Review Panel met in early October to consider Mr A’s behaviour and made a preliminary recommendation of termination. NSW Trains wrote in mid-October to Mr A asking for a response within 14 days.

Employee 'under stress'


The Australian Rail, Tram & Bus Industry Union, NSW Branch provided a response on his behalf. It essentially said that Mr A had been under a great deal of stress when he made the comments and was not thinking clearly.

The panel met to reconsider the matter and noted that the allegations had been made repeatedly and without any evidence, and there was no remorse or any demonstrated intention to improve behaviour.

The panel also took into account Mr A’s overall disciplinary history and the incidents of 2014-2015 in particular. It then recommended dismissal.

The union sought a review of the panel's final decision and, in mid-January 2016, the Transport for NSW Disciplinary Panel reviewed the decision and affirmed the decision to dismiss.

No evidence to back up allegations


Senior deputy president Hamberger found Mr A did not offer “the least shred of evidence to back [his allegations] up. There is absolutely no evidence before me that any of the accused persons are corrupt in any way, nor is there any evidence that any of them bullied, harassed or victimised the applicant.”

SDP Hamberger also cited his own comments in an earlier case that “Whistleblowers have an important role to play in our society, which deserves protection. No employee should face the risk of being dismissed merely because he or she makes a serious complaint of wrongdoing by a manager. Moreover, the mere fact that a complaint turns out to be wrong, by itself, should not lead to termination.”

However, he added, in the current case the principle of whistleblower protection “assumes the ‘whistleblower’ is acting in good faith. It is not a licence for employees to act in an irresponsible manner.”

He held that Mr A was fairly dismissed.

Full text of this case: MA v NSW Trains

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