Christopher Whittaker and Ritchie White v Sydney Trains

[2023] FWC 2186

[2023] FWC 2186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Christopher Whittaker and Ritchie White
v

Sydney Trains

(C2023/2133, C2023/2134)

DEPUTY PRESIDENT DEAN CANBERRA, 4 SEPTEMBER 2023

Applications to deal with contraventions involving dismissal – Applicants not dismissed.

1. This decision concerns two applications made under s.365 of the Fair Work Act 2009 by Mr Christopher Whittaker and Mr Ritchie White (collectively, Applicants) for the Commission to deal with a general protections dispute involving their alleged dismissals by Sydney Trains (Respondent).

1. The Respondent has raised a jurisdictional objection that the Applicants are still employed, that they have not been ‘dismissed’ for the purposes of s.365 and within the meaning of s.386 of the Act.

1. The Commission must determine whether the Applicants have been dismissed before it can exercise powers under s.368 of the Act to deal with the dispute about whether their dismissals were in contravention of the general protections provisions.[1]

1. The jurisdictional objection was heard by video on 18 August 2023. Both the Applicants and the Respondent were granted permission to be represented by lawyers pursuant to s.596 of the Act. Mr A Chakrabarty appeared for the Applicants and Mr M Baroni of Counsel appeared for the Respondent. Closing written submissions were received from the Applicants on 30 August 2023 and from the Respondent on 1 September 2023.

1. During the hearing, Mr Baroni and Mr Chakrabarty both agreed that the single matter the Commission was limited to determining was whether the Applicants were dismissed. Whether any such dismissal was lawful or fair was not a matter for the Commission to decide. I add that it is also not a consideration for the Commission whether the Respondent followed its own policies or not, or whether it “should have” dismissed the Applicants. The only issue for determination is whether they were in fact dismissed.

1. The meaning of ‘dismissed’ is defined in s.386(1) of the Act as follows:

(1)       A person has been dismissed if:

(a)   the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b)   the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

1. There is no dispute the Applicants have not resigned. The issue then is whether their employment has been terminated on the Respondent’s initiative. For the reasons set out below, I find the Applicants have not been dismissed within the meaning set out above.

Background

1. For the most part, the factual circumstances are not in dispute and are briefly stated here.

1. The Applicants have been employed by the Respondent as an Area Controller Grade 2 (ACG2).

1. Both performed their duties at the Granville Signal Box (Granville) until it closed in March 2023.

1. The Applicants were advised in writing that after the closure of Granville, they would be relocated to the Blacktown Signal Box (Blacktown) and continue in their role as an ACG2.

1. Location specific training is required when moving from one signal box to another. The Applicants are required to successfully complete this training at Blacktown before undertaking their duties as an ACG2 there.

1. Both attended Blacktown for a few weeks in April 2023 but did not perform the duties of an ACG2 because they had not undertaken the location specific training. They subsequently applied for and were granted a period of long service leave.

1. It is not in dispute that as at the date of the hearing, the Applicants are both on long service leave and continue to be paid such leave by the Respondent.

Consideration

1. A considerable amount of the evidence and submissions adduced by both parties was not relevant to the matter the Commission needs to decide. Having considered the evidence and submissions that are relevant, it is clear and I find that the Applicants were not dismissed within the meaning set out in s386(1) of the Act, in that they have not been not dismissed at the initiative of the Respondent. It is not in dispute that the Applicants are currently on a period of paid long service leave. This uncontroversial and inescapable fact is all that is needed to base this finding.

1. While it is unnecessary to deal with any other matters, I note the following.

1. The Applicants are of the view that the Respondent’s policies entitled them to be retrenched, or otherwise that the Respondent could not require them to relocate to Blacktown after Granville closed without their consent. They both expressed a concern that the Respondent had not followed a proper process or its own procedures. However, whether such procedures were followed is not a relevant consideration to whether they were dismissed. It is inescapable that both remain in the employ of the Respondent, having confirmed this during their oral evidence, and are on a period of long service leave which was approved by the Respondent in April 2023.

1. The role of the Applicants is an ACG2. This is the role they performed at Granville and this is the role they were transferred to when they relocated to Blacktown.

1. The evidence does not support a finding that the relocation was unreasonable in terms of travel time for the Applicants. In any event, the Applicants did attend Blacktown for a few weeks before the commencement of their long service leave.

1. The requirement to undergo location specific training which they have not yet completed does not change the fact they remain employed.

1. The Applicants, in their closing submissions, argued that they were dismissed because of conduct of the Respondent which included the initiation of an organisational change process, the closure of Granville and the abolishing of their positions because of the closure of Granville. They argued that the ACG2 positions at Blacktown were entirely new positions, and the old positions at Granville had been abolished and made redundant. The Applicants also argued that the direction issued by the Respondent to relocate involved an illegality because it was inconsistent with the Respondent’s obligations under relevant policies and other instruments. To the extent it is necessary to do so, I reject these submissions based on the earlier considerations. None of these arguments change the fact that the Applicants remain on paid long service leave.

1. In summary, the Applicants remain employed by the Respondent in their role as an AGC2. These applications are therefore dismissed.

DEPUTY PRESIDENT

Appearances:

A Chakrabarty of Adero Law for Christopher Whittaker and Ritchie White.
M Baroni of Counsel for Sydney Trains.

Hearing details:

2023.
By video:
August 18.

Final written submissions:

1 September 2023.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

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