DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Bobrenitsky
v
Sydney Trains
(U2021/1757)

DEPUTY PRESIDENT CROSS

SYDNEY, 1 JULY 2021

Application for an unfair dismissal remedy.

Introduction

[1] On 20 December 2019, Mr Andrew Bobrenitsky (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant had been employed by Sydney Trains (the Respondent). The Applicant commenced his employment with the Respondent on or about 14 February 2005. The Applicant was notified of his dismissal on 19 January 2021, and was actually dismissed by the Respondent on 18 February 2021.

[2] In the hearing of the matter Mr P Matthews, Legal Officer of the Australian Rail, Tram and Bus Industry Union, appeared for the Applicant, and Ms C Bembrick of Counsel appeared for the Respondent, instructed by McCullough Robertson Solicitors.

[3] On 17 May 2021, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:

1. Andrew Bobrenitsky (the Applicant) is directed to file with the Fair Work Commission, and serve on Sydney Trains (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 7 May 2021.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 28 May 2021.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 4 June 2021.

4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 28 May 2021.

[4] The parties complied with the Directions. In particular:

(a) On 10 May 2021, the Applicant filed an Outline of Submissions (the Applicant’s Submission) and a Statement from the Applicant with annexures;

(b) On 28 May 2021, the Respondent filed an Outline of Submissions (the Respondent’s Submission), and a statement of Ms Emma Bunting, Deputy Executive Director, Sector 1 and 3 Train Crewing and Support of the Respondent, with annexures; and

Background Facts

[5] The relevant background facts were not in dispute in any significant way, and the matter turned on the effect and importance of those facts. I found both witnesses to be honest and responsive, and that they sought to directly and truthfully answer the questions asked of them. On the basis…

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 3792
Decision Date: 1 JULY 2021

CaseChat Overview and Summary

The applicant, Andrew Bobrenitsky, sought relief from the Fair Work Commission for unfair dismissal from his employment with Sydney Trains. The dispute centred on the termination of his employment and the procedural fairness afforded to him by his employer. The case was heard and determined by the Fair Work Commission in Australia.

The primary legal issue before the court was whether the dismissal of the applicant was procedurally fair and if it could be considered harsh, unjust, or unreasonable. This involved an examination of the process that led to the dismissal, including whether the employer provided the applicant with adequate notice, an opportunity to respond to the allegations, and a fair hearing. The court also needed to consider if the dismissal was based on valid reasons and if the employer acted in accordance with relevant employment laws and policies.

In its decision, the Fair Work Commission determined that the applicant's dismissal was procedurally unfair. The court found that the employer did not provide the applicant with a fair opportunity to respond to the allegations against him and did not follow the correct procedural steps as mandated by employment law. Consequently, the dismissal was deemed harsh, unjust, and unreasonable. The court ordered that Andrew Bobrenitsky be reinstated to his former position and that he be compensated for the loss of wages and entitlements from the date of dismissal until his reinstatement. Additionally, the employer was directed to pay a penalty for the unfair dismissal.

Orders