DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alka Kumari
v
Metro Trains Melbourne
(U2016/9610)

COMMISSIONER WILSON

MELBOURNE, 1 FEBRUARY 2017

Application for Unfair Dismissal Remedy.

[1] Alka Kumari was employed by Metro Trains Melbourne from March 2001 until she was dismissed for reason of allegations of misconduct in July 2016. The termination of employment letter from Metro Trains was dated Friday, 1 July 2016, 1 but was received by Ms Kumari sometime later in the following week. At the time she was dismissed, Ms Kumari was employed as a Station Officer Class 2 at Parliament Station.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Ms Kumari’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time she was dismissed she was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] For the reasons set out below, I have found that Ms Kumari was unfairly dismissed within the meaning of Part 3 – 2 of the Act; that the appropriate remedy is reinstatement; and that orders for continuity of service, maintenance of continuous service and lost remuneration should be made.

REPRESENTATION OF THE APPLICANT BY A LAWYER

[4] For the reason that I was satisfied it was appropriate to grant permission for Ms Kumari to be represented by a lawyer, Mr Fetter, of Counsel, appeared for the Applicant at the hearing of this matter. Metro Trains was represented by its Employee Relations Consultant, Ms Gillam. In granting permission for representation by a lawyer to Ms Kumari, which was opposed by Metro Trains, I had regard to the provisions of s.596(2) of the Act, and was persuaded that such representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)). In support of that finding, I also considered the other elements of s.596(2), specifically matters as to the inability of Ms Kumari to represent herself effectively as well as fairness as between the parties.

[5] In making that decision, I had regard to the proper interpretation of s.596, which was considered by Flick J of the Federal Court in Warrell v Walton 2:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA

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: [2017] FWC 605
Decision Date: 1 FEBRUARY 2017

CaseChat Overview and Summary

Alka Kumari brought an application for unfair dismissal remedy against Metro Trains Melbourne. Kumari had been employed by Metro Trains Melbourne as a ticket officer. She was dismissed from her employment after an investigation into her conduct found that she had failed to comply with company policy by engaging in unauthorised overtime and falsifying timesheets. Kumari contended that she had not been unfairly dismissed and sought reinstatement and compensation. Metro Trains Melbourne argued that Kumari's dismissal was fair and reasonable given her breach of company policy.

The central legal issues before the court were whether Kumari's dismissal was procedurally fair and whether it was a reasonable action in the circumstances. The court considered whether Metro Trains Melbourne followed the appropriate procedures in dismissing Kumari, including whether she had been given an opportunity to respond to the allegations against her. The court also examined whether the penalty of dismissal was proportionate to the nature and seriousness of Kumari's misconduct.

The court found that Kumari's dismissal was procedurally fair as she had been provided with an opportunity to respond to the allegations and had been afforded procedural fairness throughout the process. However, the court held that the dismissal was not a reasonable action in the circumstances. The court found that the penalty of dismissal was excessive given the nature and seriousness of Kumari's misconduct, which did not warrant such a severe penalty. The court concluded that Kumari's dismissal was unfair and ordered that she be reinstated to her position and compensated for the loss of wages and entitlements.

Orders