In March 2021, a female student accused a Sydney Trains station worker of assaulting her by briefly hugging and kissing her whilst alone on a train platform as stated in a police report.

The station worker recognised the student as weeks earlier he helped her get away from a troubling passenger who was harassing her. On previous occasions, the station worker had also given the student his business card with his phone number on it and informed her that she could enter his office at any time if she wanted to talk.

As a result, Sydney Trains suspended the station worker with pay after he was arrested and charged with common assault and sexually touching a child under 16-years-old as per section 61 and section 66DB of the NSW Crimes Act.

An external investigation took place and found that the Sydney Trains employee inappropriately hugged and kissed the student in breach of the business’ workplace policies.

Sydney Trains dismissed the station worker in January 2022 after the NSW Local Court found both charges were proven, and he was sentenced to a community correction order and a conditional release order.

The worker asked to be placed on unpaid leave, rather than dismissed, pending lodging an appeal of his conviction. Sydney Trains declined this request and the dismissal took effect on 28 January 2022. The worker lodged an unfair dismissal claim with the Commission on 17 February 2022.

The employee’s conviction was overturned in May 2022 by the District Court, and the unfair dismissal matter was heard in October 2022.

Decision

The Sydney Trains employee maintained that he did not kiss the student and ‘only’ hugged her because he believed she wanted him to initiate it. He accepted that if the Commission found that he did kiss the student, his claim would be unsuccessful.

Ultimately, the Commission held that the CCTV footage did not support the student’s account who ‘honestly but mistakenly believed’ that the worker had kissed her neck. Rather, the footage reflected a ‘platonic’ one-armed hug for two seconds, but no evidence of a kiss.

In addition, the Commission found that the student and station worker’s previous interactions added context to the scenario. Previously, the student informed the Sydney Trains employee that she was being harassed by another passenger. As a result, the worker searched the platforms, contacted the student’s parents, arranged for the student to be looked after and encouraged her to file a police report.

Arguably, the employee also gave the student his business card as he was concerned for her safety and had done the same for hundreds of other customers in the past. The station worker also had an immaculate nine-year clear work record and always went ‘above and beyond’ in his role.

Although the Commission found the hugging of the student gave Sydney Trains a valid reason for dismissal, it was held that because of the employee’s significant length of service and clear record, it was harsh and unreasonable to dismiss him for a single hug without any formal warning.

Since the employee was initially charged by police and stood down, his career and family life have been adversely impacted.

Therefore, the Commission ordered Sydney trains to reinstate the employee back to his former position and pay lost remuneration from when his conviction was quashed in May 2022.

Learnings for Business

This case highlights the importance of ensuring that an accurate and thorough investigation takes place following any serious allegations in the workplace. Following the investigation, it is just as important for a business to determine what disciplinary action is warranted and proportionate in the circumstances, taking account of all relevant factors and ensuring the employee has an opportunity to respond to any proposed sanction.

It is also imperative to take the employee’s length of service and work record into consideration, noting the FWC has cope to consider any relevant factors to determine if a dismissal is harsh or unreasonable, as occurred in this case.

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