Reinstatement for rail worker who hugged student
An unfair dismissal case has seen the reinstatement of a rail worker who was initially convicted of indecently assaulting a year eight student. The charges saw him dismissed from his role at Sydney Trains. However those charges later turned out to be greatly exaggerated. When you first read the headline you think something is wrong here. How can you win such a claim? But this goes to prove my point, when there is an issue around misconduct in the workplace how the employer, the managers jump to conclusions. Lets look at the unfair dismissal success case in more detail.
This unfair dismissal case – Merhej Elali v Sydney Trains – is one that highlights the perils of showing affection in the workplace. No matter how innocent or well-intended it is – particularly to children. And it shows how quickly false or exaggerated accusations can plunge your career and personal life into turmoil. Let’s look at the events leading up to the worker’s dismissal, and why he was reinstated.
Model Sydney Trains worker charged with sexually touching a child
Merhej Elali, who had worked for Sydney Trains for nine years prior to his dismissal in January 2021, was a model employee. He had a perfect disciplinary record and regularly went out of his way to assist passengers. This included one elderly passenger, who detailed Mr Elali’s kindness on talk-back radio. She said that he had driven 25 kilometres in his own time to return her wallet that she had left on a train.
In evidence provided to the Fair Work Commission (FWC), Mr Elali’s co-workers stated that he was an honest family man who had a great attitude to work. They said he was always someone they could trust and a proud father to his two children. But in March 2021, Mr Elali was charged with two offences: common assault and sexually touching a child between 10 and 16 years of age.
“I felt him kiss me a bit:” Why employee was charged and eventually dismissed
Mr Elali’s charges stemmed from an incident with a high school student two days earlier, who reported him to the police. She alleged that Mr Elali hugged her while she was alone on the station concourse, before briefly kissing her on the neck.
“Then his face went on my neck. And then he hugged me and then I felt him kiss me a bit,”
the student told police.
The student also said that Mr Elali had asked her what year she was in at school, before telling her that she looked like a year 10 student.
Employee had previously helped the student
The student also detailed a previous occasion where Mr Elali had provided her with a business card with his phone number on it. This was after he had helped her resolve an issue with her Opal card. When questioned about this in his criminal trial, Mr Elali said that he had provided the card to the student because “I was worried for her safety.” He said that he had done the same for more than 500 other passengers.
Mr Elali had also helped the student on another occasion four months prior to the hugging incident. This was because she had told him she was being harassed by another passenger, who told her that she “looks f**king gorgeous.”
Mr Elali had searched the station in an attempt to apprehend the passenger. He also got in touch with the student’s father to meet her at another station. He followed up with the student’s mother to ensure she was OK and encouraged her to report the incident to the police. These events would later provide critical context that would help Mr Elali in his criminal trial and unfair dismissal hearing.
“He was reckless:” Employee faces court for criminal offences
Upon being charged for his alleged crimes, Mr Elali was immediately suspended with pay by Sydney Trains. The organisation sought an external party to conduct an investigation into his conduct. That investigation was later put on hold when Mr Elali’s criminal trial began in the NSW Local Court.
In his trial, the NSW Local Court Magistrate Huber assessed the CCTV footage of the incident with the student. She dismissed the evidence provided by Mr Elali, finding that there were “a number of inconsistencies” between what he had told police and what was apparent in the footage.
Mr Elali had claimed that he hadn’t initiated the hug with the student. This claim was dismissed by Magistrate Huber, who found that Mr Elali had initiated it. She said that it was “without any lawful excuse, the force was unlawful and he was reckless.” With respect to the alleged kissing, Magistrate Huber found that Mr Elali had been guilty of that too.
“…the CCTV footage is not inconsistent with his lips touching the neck and indeed, it is consistent with nuzzling and his lips touching her neck,”
Magistrate Huber
Magistrate Huber ultimately found Mr Elali guilty of common assault and sexually touching a child between 10 and 16 years of age. He was sentenced to a community correction order and a conditional release order.
Sydney Trains dismisses the employee
Mr Elali decided to appeal the decision in the District Court. As such, he requested that Sydney Trains delay any final determination on his employment until after his appeal played out. He requested that he be placed on unpaid leave. But despite this plea, Sydney Trains shortly thereafter dismissed Mr Elali. During this entire ordeal, Mr Elali said that it had taken a severe toll on his personal life. He later told the Fair work that he had developed a major depressive disorder.
He also put on 20KG and developed hair loss. Mr Elali said his relationship with his wife, father, brothers and many friends “deteriorated and [were] destroyed.”
Employee gets dismissed, but is then cleared of criminal charges
At Mr Elali’s appeal hearing at the District Court, Justice Hunt assessed the CCTV footage more closely. He deemed that it showed “two people who are pleased to see each other and engaging in a very brief platonic hug.”
He also said that he was “left in a significant amount of doubt” as to whether Mr Elali actually kissed the student’s neck. “… I have some doubt about [Mr Elali’s] lips having been in any contact with the complainant’s neck,” said Justice Hunt. Mr Elali was subsequently cleared of the two charges.
Employee has his unfair dismissal case heard by the Fair work
These observations and Mr Elali’s acquittal on appeal were taken into account at his unfair dismissal hearing with the Fair work. Despite being cleared of the charges, Mr Elali agreed with Sydney Trains that he had acted inappropriately by hugging the student. Deputy President Easton acknowledged that Mr Elali had previously helped the schoolgirl. But he found that their prior interactions didn’t five Mr Elali “permission or licence to invade the student’s personal space.”
The Deputy President, however, agreed with the findings of the District Court. He said that the CCTV footage didn’t prove the testimony of the student, who “honestly but mistakenly believed that Mr Elali kissed her on the neck.” While he found that Mr Elali had initiated the hug, the Deputy President said that the footage did not “show even a moment where it could have been possible” for him to kiss the student’s neck.
The Fair work rules on the unfair dismissal case
Despite Mr Elali being found not guilty of the criminal charges, Deputy President Easton stated that there was a valid reason for his dismissal. However, he ruled that it was harsh, unjust or unreasonable to dismiss him. In making this decision, the Deputy President took into account Mr Elali’s work history and previous dealings with the student. He said Mr Elali had an “exemplary record” during his nine-year tenure with Sydney Trains. And that his previous interactions with the student were “satisfactory if not commendable.”
Deputy President Easton also spoke out against the Sydney Trains head of customer experience. In leading the disciplinary process of Mr Elali, she had alleged that he’d taken a “potentially predatory course of conduct.” She also alleged that Mr Elali had “targeted” the student. “I am very concerned that such serious allegations were so flimsily put, endorsed in submissions and then lightly abandoned at hearing,” said Deputy President Easton.
Mr Elali has his dismissal overturned
Ultimately, the Deputy President overturned Mr Elali’s dismissal. He ordered Sydney Trains to reinstate his employment and pay his lost renumeration from when he was acquitted of the criminal charges. He directed the two parties to reach an agreement on whether Mr Elali should resume his former role or another on similarly favourable terms.
Conclusion to: Unfair dismissal success for rail worker who hugged student
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