DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Kramer
v
NSW Trains
(U2015/10983)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 17 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Craig Kramer lodged an application alleging that his dismissal by NSW Trains on 28 July 2015 was unfair. The application was referred to conciliation on 8 September 2015.

[2] The matter did not settle and negotiations continued. On 11 September 2015, the legal representatives for the parties discussed the terms of settlement and reached an agreement on the terms of the settlement. 1 It is not contested that the parties did not discuss when the monies would be paid.

[3] That the parties had reached an agreement was communicated to the conciliator who prepared the terms of settlement. A letter was sent to the parties by the conciliator on 14 September 2015 in which it was noted that the parties had reached an agreement and had waived the cooling off period. The terms of settlement reflected the settlement terms agreed to by the parties (aside from the date of payment). NSW Trains signed the terms of settlement and forwarded a signed copy to Mr Kramer’s legal representative on the same day.

[4] On 15 September 2015, Mr Kramer wrote to Mr Thompson, the representative of NSW Trains, saying:

“I received a [sic] email from Mr Madden regarding the settlement however I feel it’s in my interest to wait for the responses from hopefully all the politicians either I or family and friends have sent recently regarding my current situation I have attached a copy of my email to the Transport Minister Mr Constance but similar ones were sent to Mr Ryan Park, Shadow Transport Minister, Deputy Premier Mr Troy Grant and my local member Mr Andrew Gee. I have had phone conversations with Mr Park and Mr Grants offices and will be making a appointment to see Mr Gee as soon as possible.” 2

[5] Mr Thompson forwarded that email to Mr Madden, Mr Kramer’s legal representative, asking him what is going on and whether there was an agreement or not.

[6] Mr Kramer sent another email to Mr Thompson on the same day saying:

“Regarding the signing and accepting of the settlement document, which I have not seen, I am not signing anything until I receive feedback and advice from the offices of the members of parliament who have received emails from myself and other friends and family and I would appreciate it if you respected my position and not demand my solicitor finalise this. I was FINALLY contacted regarding returning of my keys and uniform which I wonder would’ve occurred if I didn’t raise the issue?” 3

[7] On 16 September 2015, Mr Thompson wrote to Mr Madden and stated that Mr Kramer’s comments are completely at odds with the agreement that was negotiated by the Fair Work Commission that week.

[8] On the same date, Mr Madden advised Mr Thompson that he would…

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.

Continue reading Craig Kramer v NSW Trains

Details

AGLC: Craig Kramer v NSW Trains [2015] FWC 7895
Case: [2015] FWC 7895
Decision Date: 17 NOVEMBER 2015

CaseChat Overview and Summary

The case before the court involved Craig Kramer, an employee of NSW Trains, who applied for relief from an unfair dismissal. The matter was heard and determined by the Fair Work Commission. Mr Kramer alleged that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The primary dispute centred on the procedural fairness afforded to Mr Kramer during the disciplinary process that ultimately led to his termination.

The central legal issues that the court had to address were whether Mr Kramer was afforded procedural fairness during the disciplinary proceedings and whether his dismissal was genuinely justified. The court needed to determine if the employer, NSW Trains, complied with the necessary procedures and if the dismissal was fair and reasonable in the circumstances. The court also had to consider whether Mr Kramer's actions warranted the termination of his employment.

In examining the case, the court reviewed the evidence and submissions from both parties. It found that NSW Trains did not provide Mr Kramer with adequate procedural fairness during the disciplinary process. Specifically, the employer failed to inform him of the allegations against him and did not give him an opportunity to respond to those allegations. The court concluded that the procedural deficiencies were significant and contributed to an unfair outcome. Consequently, the dismissal was deemed to be unjust. The court ordered that Mr Kramer be reinstated to his former position and awarded him compensation for the loss of wages and other entitlements.

Orders