DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aisha Brelin
v
Sydney Trains
(U2020/14707)

DEPUTY PRESIDENT BULL

SYDNEY, 13 MAY 2021

Application for an unfair dismissal remedy - Motor vehicle accident whether reckless or human error - Whether employee provided false or misleading information - Reinstatement and lost remuneration considered.

[1] Mr Aisha Brelin (the applicant) has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that he was unfairly dismissed by Sydney Trains, and seeks reinstatement as a remedy. 1

[2] Mr Brelin states that he was dismissed on 23 October 2020, when he received a letter (dated 22 October 2020) from Transport for NSW, stating that Sydney Trains’ earlier disciplinary decision to terminate his employment was affirmed.

[3] The correspondence from Transport for NSW was a result of Mr Brelin requesting that a Disciplinary Penalty Review be undertaken following advice he received from Sydney Trains on 8 September 2020 that Sydney Trains was of the view that his employment should be terminated due to engaging in conduct that breached particular sections of the Sydney Trains Our Code of Conduct (Code of Conduct) and in particular:

Section 3 – Staff responsibilities and

Section 9 – Workplace health and safety.

[4] The correspondence advised that Mr Brelin could, under the Interim Discipline Penalty Process Guidelines, within a 10-day period ‘access a review process on the grounds that a disciplinary decision ought not to have been made because it was unfair, harsh or unreasonable’. Mr Brelin availed himself of the Disciplinary Penalty Review process, but the dismissal decision was not overturned.

[5] At the hearing of this matter, Sydney Trains was represented by Counsel, which was not opposed, and permission was granted as per s.596(2)(a) of the Act. Mr Brelin was represented by officers of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU).

Background

[6] On 17 August 2019, Mr Brelin while reversing his work vehicle on a rail access road collided with a power pole. Mr Brelin reported the accident to Sydney Trains management and management representatives attended the site to assess the damage to the vehicle.

[7] On 26 August 2019, Mr Brelin participated in a formal interview conducted by a Mr Daniel Gonsalves, a Plant Mechanic and Acting Team Manager at the Clyde Heavy Plant Depot 2 as part of a Level 5 Investigation Report. Mr Brelin provided a written statement of his account of the accident. Mr Gonsalves’ Workplace Investigation concluded that the immediate cause of the accident was ‘human error caused by poor visibility and breakdown in communication.’ The investigation outcome was signed off by the Acting Service Manager Heavy Plant & Resurfacing at the Clyde Heavy Plant Depot, Ms Margaret Pearce on 6 September 2019 and the investigation was deemed closed.

[8] The Investigation Report made a number of recommendations, including that Mr Brelin attend a driver trainer course, which he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 1314
Decision Date: 13 MAY 2021

CaseChat Overview and Summary

The case of Aisha Brelin v Sydney Trains involved an application for an unfair dismissal remedy by Brelin, an employee of Sydney Trains, who sought to challenge her dismissal on the basis of unfairness. The dispute arose from an incident where Brelin, a train driver, was involved in a motor vehicle accident that resulted in a collision with another train. Sydney Trains alleged that Brelin's actions were due to reckless driving and human error, and further claimed that she had provided false or misleading information during the investigation. The case was heard in the Fair Work Commission, which had jurisdiction to determine the fairness of the dismissal and to provide any appropriate remedies.

The central legal issues the court needed to address were whether Brelin's dismissal was unfair and, if so, what the appropriate remedy should be. The court needed to examine the evidence regarding the circumstances of the motor vehicle accident, the nature of Brelin's involvement, and the veracity of any information she provided. Additionally, the court had to consider whether the dismissal was justified and if reinstatement and lost remuneration were suitable remedies.

In delivering the decision, the Fair Work Commission found that Brelin's dismissal was indeed unfair. The court held that while the motor vehicle accident was a serious incident, the evidence did not conclusively establish that Brelin acted recklessly or provided false information. The court emphasised that there were other factors that could have contributed to the accident, and the employer had not sufficiently proven that Brelin's actions warranted dismissal. Consequently, the court ordered Sydney Trains to reinstate Brelin to her former position and to pay her lost remuneration from the date of dismissal until the date of reinstatement.

Orders