Dragan Marijan v Rail Corporation New South Wales T/A RailCorp

Dragan Marijan appealed against the decision of the Fair Work Commission, handed down on 28 September 2012, in relation to his termination of employment by Rail Corporation New South Wales, trading as RailCorp. The crux of the matter was whether the employer was justified in terminating Marijan's employment for breaching company policies, specifically concerning his involvement in an incident where he was allegedly seen using inappropriate language towards a colleague. The dispute centred on the employer's handling of the investigation into the incident, including a significant delay in concluding the investigation, and whether the employer condoned the alleged contraventions.

The legal issues before the court were multi-faceted. First, it was necessary to determine whether the employer had valid grounds for terminating Marijan's employment. Second, the court had to consider the impact of the employer's failure to suspend Marijan during the investigation, as well as the potential for condonation of the alleged contraventions. Additionally, the court needed to assess whether the employer should have called evidence from the decision-maker and whether there was a failure to follow due process. Finally, the court evaluated the public interest in upholding the employer's decision and the appropriateness of granting Marijan permission to appeal.

The court examined the employer's handling of the investigation, noting the substantial delay and the lack of suspension during the investigation period. It found that the employer's actions could be interpreted as condoning the alleged breaches, thus undermining the fairness of the termination decision. The court also determined that the employer should have called evidence from the decision-maker to ensure a comprehensive and fair investigation. The court concluded that the employer's failure to act promptly and fairly, along with the significant delay, adversely affected the validity of the termination decision. Consequently, the appeal was allowed, and the original termination decision was set aside.

The final orders of the court were that Marijan's termination of employment was to be deemed unfair and unlawful. The court ordered RailCorp to reinstate Marijan to his former position and compensate him for lost wages and other entitlements from the date of termination until the date of reinstatement. Furthermore, the court mandated that RailCorp review and revise its internal policies and procedures for handling similar incidents to ensure fairness and adherence to legal standards in the future.