Employee contests firing after customer incident escalates to confrontation
The Fair Work Commission (FWC) recently dismissed an unfair dismissal application from a railway porter who was terminated following a violent incident between a customer and security guard.
The worker argued his dismissal was unfair as his conduct did not breach company policies, or if policies were breached, dismissal was a disproportionate response to the circumstances.
The case arose when the porter failed to open fare gates for two young customers seeking to exit, leading to an escalation that resulted in a physical altercation between one customer and a privately contracted security guard.
The railway authority argued this incident represented another failure to discharge fundamental porter duties despite extensive retraining and previous disciplinary action.
The porter was employed by the railway authority from November 2016, working at a major train station since June 2020.
His role required contributing to station efficiency, attending to customer requirements, and assisting in providing a safe environment.
The position description emphasised that opening fare gates to maintain customer flow was critical to reduce customer-related incidents.
The employer's training highlighted that porters must open fare gates to allow customers to enter or exit, with fare collection not being a porter responsibility.
Porters were required to ask for fares unless unsafe to do so, based on conducting a Person, Object, Place (POP) assessment. However, the clear priority was assisting customer movement rather than preventing fare evasion.
The worker had received extensive training in the ALERT violence avoidance programme, which stands for Awareness, Look and Listen, Embrace and Empower, React, Tell Someone.
This training specifically instructed that employees should prioritise personal safety by opening gates when confronted with potentially problematic customers.
On 6 August 2024, the porter initially correctly opened fare gates for two young customers entering the station - a female with a ticket and a male holding an open beer bottle.
However, when the same customers returned approximately 15 minutes later seeking to exit, the porter failed to open the gates. The railway authority argued this failure led directly to a serious escalation involving violence.
The incident evolved rapidly when the male customer activated an emergency switch to open the gates, but the porter immediately closed them again by resetting the switch.
A security guard then approached and initiated a physical altercation with the customer, grabbing him by the throat and throwing him to the ground.
The porter remained at his workstation during the violence rather than immediately opening gates or moving to a position of safety.
The entire incident lasted only two minutes. The porter eventually opened a gate during the altercation but failed to keep it open when another customer passed through.
The security guard ultimately directed the young couple through the porter's enclosure to exit the station.
The worker had been involved in repeated incidents related to deficient discharge of porter duties throughout his employment.
These included a 2018 near-miss where he followed abusive customers rather than maintaining safe distance, and multiple 2022 incidents where customers spat on him or became aggressive when he failed to follow proper procedures.
An incident occurred in January 2022 when the porter should not have engaged with anti-social behaviour and should have "just opened the barrier to let the person out." In April 2022, he received a final warning after physically pushing a customer who tried to pass through his enclosure rather than following ALERT procedures.
The most relevant prior incident occurred in March 2023 when a customer threw a can at the porter after he refused immediate access while helping another customer.
The investigation found the porter "had ample time to allow the third customer through the fare gates" but failed to do so. This incident led to a Performance Improvement Plan focusing on safety strategies.
The railway authority had provided extensive training opportunities throughout the worker's employment.
He completed ALERT violence avoidance training on six separate occasions between 2016 and 2023, including in-person workshops and refreshers. His most recent ALERT training occurred just three months before the final incident.
The worker also completed Code of Conduct training ten times between 2016 and 2024, with his final session occurring just days before the incident.
Additional training included safety workshops, customer service courses, and specific retraining following each performance incident. Despite this extensive training, the worker continued to demonstrate deficient understanding of porter duties.
The railway authority placed the worker on a Performance Improvement Plan in 2023 following the can-throwing incident, conducting multiple review meetings over several months.
However, the final incident demonstrated the worker had not internalised the training despite numerous opportunities.
The railway authority immediately initiated an investigation, initially standing the worker down on pay before returning him to alternative duties under supervision.
The investigation took nine weeks to complete, with the worker performing satisfactorily in his alternative role throughout this period.
The investigation substantiated allegations that the worker "acted in an improper manner" creating "an unsafe situation."
In his response, the worker expressed remorse stating: "I had no idea, nor did I have the intention of creating an unsafe environment when I came to work on 6 August."
However, he demonstrated continued misunderstanding of his duties, focusing on being "genial" with customers rather than prioritising safety through immediate gate opening.
The railway authority concluded dismissal was appropriate given repeated breaches despite extensive training and progressive discipline.
The termination letter noted: "Your disciplinary history demonstrates repeated breaches of policies and procedures... The repeated and consistent behaviours by you indicate that you fail to grasp the seriousness of your actions."
The FWC found valid reason for dismissal, noting the worker's failure to discharge porter duties was "responsible for the escalation of the dangerous interaction." The unfair dismissal application was dismissed.
