DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Chambers
v
Toll Transport Pty Ltd
(U2019/9938)

DEPUTY PRESIDENT BOYCE

SYDNEY, 6 NOVEMBER 2020

Application for an unfair dismissal remedy — workplace unions delegates dismissed for ‘serious misconduct’ for fighting — union delegates travelled from Sydney to Melbourne to attend union meetings — fighting occurred post the cessation of union meetings at a hotel — union delegates on paid union delegate’s leave — employer paid for airfares, accommodation, and meals — fighting did not occur ‘at work’ — employee conduct did not have sufficient connection with work — no valid reason for dismissal — reinstatement, lost wages and continuity of employment an appropriate remedy.

[1] This decision concerns an unfair dismissal application made by Mr Wayne Chambers against Toll Transport Pty Ltd (Toll).

[2] The matter was heard together with the unfair dismissal application made by Mr Stephen Newton in Stephen Newton v Toll Transport Pty Ltd (U2019/9520), with evidence in one proceeding being evidence in the other. Where I refer to the “Applicants” in this decision, I am referring to both Mr Chambers and Mr Newton.

[3] Both of the Applicants were:

(a) employed as Truck Drivers (throughout their employment) with Toll; and

(b) at the time of their dismissals on 23 August 2019, delegates of Transport Workers’ Union of Australia (New South Wales Branch) (TWU) (in respect of the relevant division of Toll).

[4] Mr Chambers asserts that his dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act). He seeks the primary remedy of reinstatement, or in the alternative, compensation.

[5] Mr Chambers was dismissed for reasons of alleged “serious misconduct” in relation to a fight (being both a verbal and physical altercation) between Mr Newton and himself at the Seasons Botanic Gardens Hotel (Hotel) in St Kilda, Victoria, on 30 May 2019, at around 10.25pm (Fight). Mr Newton was also terminated for alleged serious misconduct in relation to his role in the Fight (as well as his role in another verbal altercation with another Toll TWU delegate on 9 April 2019).

[6] In summary, Mr Chambers does not dispute that he engaged in the Fight. However, he submits that there is no “valid reason” for his dismissal because he did not engage in the Fight at work. In the absence of a valid reason, Mr Chambers submits that his dismissal was harsh, unjust, and/or unreasonable.

[7] In response, Toll says that the dismissal of Mr Chambers was not unfair because there was a valid reason for his dismissal in the facts and circumstances of this case.

[8] The parties are also in dispute as to whether Toll afforded Mr Chambers procedural fairness in effecting his dismissal.

Permission to be legally represented granted to all parties

[9] At the hearing, Mr M Gibian of Senior Counsel, instructed by Mr G Webb of the TWU appeared for Mr…

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: [2020] FWC 5819
Decision Date: 6 NOVEMBER 2020

CaseChat Overview and Summary

The case of Chambers v Toll Transport Pty Ltd involved union delegates who were dismissed for their involvement in a fight outside a hotel in Melbourne, following union meetings. The delegates had been travelling on paid leave from Sydney to Melbourne for these meetings, with the employer covering the costs of airfares, accommodation, and meals. The Fair Work Commission was tasked with determining whether the dismissal was unfair and, if so, what remedy should be awarded. The primary issue before the court was whether the conduct of the union delegates, which occurred outside the formal scope of their employment and after their union activities had concluded, was sufficiently connected to their employment to warrant dismissal. The court had to consider the nature and location of the misconduct, and whether it could be seen as an extension of their employment duties or activities.

The court reasoned that the conduct of the union delegates, while serious, did not occur during their employment duties or at their workplace, and thus did not have a direct and substantial connection to their employment. The employer argued that the delegates' conduct, even if outside official work hours, reflected poorly on their ability to perform their union duties responsibly. However, the court found that the dismissal was not justified as the misconduct did not materially affect the delegates' capacity to perform their employment duties. Given the lack of a valid reason for dismissal, the court considered the appropriate remedy. It was determined that reinstatement, along with compensation for lost wages and the preservation of continuity of employment, was a suitable remedy to address the unfairness of the dismissal.

The final orders of the court included the reinstatement of the union delegates to their previous positions, compensation for lost wages from the date of dismissal until reinstatement, and the preservation of their continuity of employment for all relevant purposes. The court’s decision underscored the importance of a clear connection between employee conduct and employment for a dismissal to be considered valid, especially in cases involving union activities.

Orders