By

Gaby Grammeno

Contributor

A uniformed Sydney train driver on his way to work engaged in a physical and verbal altercation with a member of the public at a suburban railway station. He was then dismissed for breaching his employer's policy.

 

The altercation arose after the train driver was tripped from behind by a member of the public when he was about to enter the concourse. When the driver turned to find out why, he was confronted by an angry, agitated stranger who invaded the driver’s personal space – breaching the 1.5m social distancing rule.

The stranger shouted abuse, swearing and slandering the driver with terms such as ‘f*cking terrorist’ (the driver’s appearance suggested his Middle Eastern heritage), swamping him with foul breath and spraying him with droplets of saliva.

In an attempt to de-escalate the situation, the driver stepped away and twice gestured for the man to move on. After a further abusive exchange, a scuffle ensued, in which both the driver and the other man engaged in some pushing and kicking.

The incident was observed by the station’s duty manager, who made no move to intervene or help the driver, but instead retreated into the office together with other railway staff who were present, and closed the door.

After further grappling, the driver managed to push the man away and tried to keep him at a distance, but the man pursued him, pushing his belly against the driver, then following closely behind the driver until another member of the public intervened and held back the offender.

The whole interaction lasted less than three minutes. As well as being shocked at the unexpected attack, the driver was worried he may have contracted COVID-19 from the close encounter. As it turned out he did test positive for COVID-19 two days after the incident.

NSW Trains initiated a workplace disciplinary investigation, suspended the driver from duty, and in due course dismissed him for serious misconduct – engaging in violence with a member of the public, in breach of the organisation’s anti-violence policies.

The worker applied to the Fair Work Commission claiming his dismissal had been unfair and seeking a remedy.

The dismissal

NSW Trains alleged that the driver had not followed the organisation’s Safework Instruction relating to customer-initiated violence, which states that if workers are confronted with customer aggression, they should follow the ‘SAFER’ approach – Step back, Assess the threat, Find help, Evaluate options and then Respond in a considered manner.

The driver argued that the employer had not considered the circumstances of the incident, which had been an unprovoked attack by a stranger who subjected him to a highly aggressive series of shouted insults and threats, invading his personal space and spraying him with his saliva.

He believed the aggressor was partly motivated by unfavourable media coverage of rail workers’ ongoing industrial action at the time, and that NSW Trains had failed to take appropriate action to protect its employees from the consequences of the negative publicity.

The deputy president of the Fair Work Commission considered the law of self-defence, and how it applied in this case. He said he found some aspects of NSW Trains’ evidence ‘troubling’ because its reasoning process failed to have proper regard to the totality of the circumstances confronting the driver in his interaction with the offender.

In particular, he said, the organisation’s ‘SAFER’ approach did not allow for physical intervention by an employee ‘for any reason (including to defend themselves)’ and did not consider the principles concerning self-defence and/or provocation.

‘It is not clear to me how such a position is valid, fair, or practicable,’ he said, noting that the driver did not have a place in which to take refuge and his attempts to de-escalate the situation had not succeeded.

The deputy president found that the driver had been entitled to defend himself, and his dismissal had been harsh, unjust and unreasonable. He ordered that the worker be reinstated, along with lost wages and continuity of employment.

What this means for employers

Policies to address workplace violence and aggression must take proper account of the circumstances of an incident and should allow for reasonable self-defence. In addition, staff should be trained to provide assistance in the event of such incidents.

Read the judgment

Wael Al-Buseri v NSW Trains T/A NSW TrainLink [2023] FWC 1517 (24 July 2023)