Charanjit Singh Birdi v Rail Corporation New South Wales T/A RailCorp - [2011] FWA 7728

Note: An appeal pursuant to s.604 (C2011/7953) was lodged against this decision and the order arising from this decision [PR516676]- refer to Full Bench decision dated 24 February 2012 [[2012] FWAFB 1404] for result of appeal.

[2011] FWA 7728

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charanjit Singh Birdi
v
Rail Corporation New South Wales T/A RailCorp
(U2011/7953)

COMMISSIONER HARRISON

SYDNEY, 10 NOVEMBER 2011

Termination of employment - unfair dismissal.

[1] This decision arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) filed by Mr Charanjit Singh Birdi (the Applicant) in respect of the termination of his employment by Rail Corporation New South Wales T/A RailCorp (the Respondent) on 16 May 2011.

[2] The Applicant was employed by the Respondent as a train guard from March 2004 until 3 May 2011 when his employment was terminated on medical grounds. The application was subject to unsuccessful conciliation on 16 June 2011 and was subsequently referred for hearing.

[3] At hearing the Applicant was self-represented. Mr D Lloyd, solicitor, instructed by Mr J Morton appeared for the Respondent.

[4] The Applicant’s employment is regulated by the RailCorp Enterprise Agreement 2010, the Rail Safety Act 2008 (NSW) and the National Standard for Health Assessment of Rail Safety Workers 2004.

[5] In his role as a train guard, the Applicant was classified as a Category 2 Rail Safety Worker and was required to undertake health assessments in accordance with the above industrial and regulatory instruments.

[6] It was not contested that the Applicant suffers from schizophrenia. According to the Respondent’s Chief Health Officer, Dr Armand Casolin, a Category 2 Rail Safety Worker, under the National Standard, requires an employee with a psychotic illness to be stable and compliant with treatment over a substantial period of time.

[7] The Applicant contends his termination was unfair and the Respondent should have retrained and redeployed him to other sections pending his recovery. Alternative positions within the Respondent’s business suggested were Human Resources, Recruitment, Technical Engineering, Administration and Training. He submitted these alternative positions were not explored or considered by the Respondent.

[8] The Applicant complained of a long history of “mistreatment” concerning payment of sick leave, the behaviour of managers towards him, harassment and of being required to work unreasonable rosters.

[9] In late 2010 the Respondent conducted an investigation into alleged serious misconduct by the Applicant relating to his failure to comply with lawful directions. On 15 December 2010 his treating doctor, Dr Sims, certified the Applicant suffers a psychotic illness and was unfit for work.

[10] It was not contested that the Applicant refused to give consent to the Respondent to contact Dr Sims or any other treating doctor to discuss his condition.

[11] On 21 December the Respondent suspended the disciplinary investigation whilst it considered the Applicant’s fitness to perform category 2 rail safety work.

[12] The Respondent arranged for the Applicant to be psychologically assessed by Professor Glozier on 14 and…

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

AGLC: Charanjit Singh Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728
Case: [2011] FWA 7728
Decision Date: 10 NOVEMBER 2011

CaseChat Overview and Summary

The Fair Work Commission heard an application for unfair dismissal by Charanjit Singh Birdi against Rail Corporation New South Wales, trading as RailCorp. Birdi, an employee of RailCorp, alleged that his termination of employment was unfair. The dispute arose from Birdi's dismissal following an incident where he was found to be in possession of a knife at a railway station, which contravened company policy. The Commission was required to determine whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act.

The key legal issue before the Commission was whether RailCorp had just cause for terminating Birdi's employment. Birdi argued that the dismissal was disproportionate, considering the company's leniency in similar past incidents. RailCorp contended that Birdi's possession of a knife, a clear breach of safety protocols, warranted termination as it endangered public safety and contravened company policy. The Commission also needed to consider the proportionality of the disciplinary action in light of the circumstances.

In its decision, the Commission acknowledged the seriousness of Birdi's actions but also recognised the company's need to maintain strict safety standards. The Commission determined that while the possession of a knife was a serious breach, the penalty of termination was disproportionate when compared to other similar incidents where warnings or lesser penalties were applied. The Commission found that the dismissal was harsh and therefore unfair. Consequently, the Commission ordered RailCorp to reinstate Birdi and compensate him for the period of lost employment.

Orders