A train driver who was sacked for two serious safety breaches has lost his unfair dismissal claim and ordered to pay his employer’s costs, after he doggedly refused a number of offers to settle the matter.
The Fair Work Commission described the 79 year-old man as “belligerent” for refusing to accept any responsibility for the safety breaches and suggested he should have accepted a number of generous offers to settle the matter, including substantial compensation and free train travel.
The safety breaches
Subeg Singh worked for Sydney Trains for 34 years before he was sacked in 2016 after an investigation into two serious safety incidents on the Illawarra line the previous year.
Mr Singh was found to have “missed” a warning light and failed to give adequate warning to workers to “jump out of the way” of an approaching train.
In a second incident, a worker was forced to run across tracks to reach safety just two seconds before a train passed the spot where he was working.
Doggedly rejects generous offers to settle
Mr Singh denied the allegations and lodged an unfair dismissal claim in the Fair Work Commission demanding reinstatement.
Inexplicably, he maintained this position despite a number of offers to settle the matter including reinstatement to a non-safety critical role or compensation above what he could receive if he succeeded with his claim.
At one point, Sydney Trains offered $70,000, an amount equivalent to six months pay plus overtime, a Gold Travel Pass and treatment of his sacking as a resignation.
Employer said worker’s demands ‘unreasonable’
Fair Work deputy president Peter Sams dismissed Mr Singh’s unfair dismissal claim in June.
Sydney Trains subsequently applied for costs to be paid by Mr Singh, arguing his dogged refusal to accept anything short of reinstatement was an unreasonable act as it would have been reasonably apparent his bid to get his job back had no reasonable prospects of success.
Mr Sams agreed, finding reinstatement “would be utterly unthinkable” given Mr Singh refused to accept any responsibility for the safety incidents and blamed Sydney Trains and his colleagues.
“His belligerent denial of any wrongdoing is so gravely concerning, that I am satisfied the employer’s trust and confidence in him has been permanently destroyed,’’ he said.
Mr Sams added that he found it “somewhat condescending” that Mr Singh considered an alternative position in head office would mean he could ‘contribute nothing’, and suggested he should have accepted the offer made by Sydney Trains.
“A settlement amount in excess of the compensation cap, even assuming he was wholly successful, should have been an active consideration for Mr Singh at that point.”
He said costs should be payable by Mr Singh to Sydney Trains from November 3, 2017, the date he received the reports.
The amount is yet to be determined.
No job, no compensation, just a big bill
Industrial advocate Miles Heffernan said he was gobsmacked that Mr Singh did not take the settlement offer from Sydney Trains.
“It is rare in an unfair dismissal case that the employer offers six months pay, plus a lifetime of free train travel, not to mention a letter describing the dismissal as a resignation,” he said.
“If we were representing Mr Singh, we would have advised him to grab that offer with both hands and run.
“He has obviously received some very poor advice – either that, or he was just too pig headed or stupid to realise how good the offer was.
“Now he’s left with no job, no compensation, and a big bill for his former employer’s legal costs.”
Mr Singh was initially represented by his friend and former Fair Work vice-president Michael Lawler, who made a brief bid to return to the tribunal as an advocate but withdrew after complaints from Sydney Trains.
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