[2017] FWC 553

The attached document replaces the document previously issued with the above code on 16 February 2017.

The replacement document makes the following corrections:

● At paragraph [3], the date “October 2004” is replaced with “July 2002”.

● At paragraph [14], the acronym “RBTU” is replaced with “RTBU”.

● At paragraph [31], the word “applicant’s” is replaced with “passenger’s”.

Associate to Commissioner McKenna

Dated 20 February 2017

[2017] FWC 553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harpreet Dhillon
v
Sydney Trains
(U2016/11589)

COMMISSIONER MCKENNA

SYDNEY, 16 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] Harpreet Dhillon (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act (2009) for an unfair dismissal remedy. The applicant primarily seeks relief by way of reinstatement to his former position with Sydney Trains (“the respondent”).

[2] As to preliminary matters, there was no issue, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer, so applicability of the Small Business Fair Dismissal Code does not arise; and the dismissal was not a case of genuine redundancy.

Background

[3] The applicant was formerly employed by the respondent in the period July 2002 until September 2016, most recently as a train guard; he had an unblemished disciplinary employment record. The dismissal turned on what was concluded by the respondent to have occurred on the night of 7/8 October 2015. Put at its lowest, the respondent contends that the applicant took a mobile telephone a passenger had accidently left on a train. This is denied by the applicant.

[4] In short form, on the night of 7 October 2015 a passenger boarded a train at Gordon (Sydney, New South Wales) and then changed trains at Central station for Padstow station. The passenger had been managing a butcher’s shop that day over the course of a long shift of 6.00am to 9.00pm. The passenger was later to describe that he had with him a bottle of beer (some of which he consumed) which was inside a brown paper bag and, relevantly, a mobile telephone encased in a bright green cover. The passenger recalled playing games on the mobile telephone and believes he fell asleep around Wolli Creek station; he missed his intended stop of Padstow station. Upon waking at Leumeah station (much further down the line from Padstow station and even further from Wolli Creek), not long before midnight, and just as the train doors were about to close, the passenger “jumped up” and alighted. As the passenger stepped on the station platform, he moved to the window and saw his mobile telephone on the floor where he had previously been seated. The passenger also reported certain other matters, which were recorded in an investigation report prepared by a consultancy engaged by the respondent. A statement by the passenger dated 22 December 2016 was in evidence as Exhibit 4. It…

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.

Keep reading for free

Create a free CaseChat account to read Harpreet Dhillon v Sydney Trains and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 553
Decision Date: 16 FEBRUARY 2017

CaseChat Overview and Summary

Harpreet Dhillon sought relief from unfair dismissal against Sydney Trains, which terminated her employment. The Fair Work Commission, the tribunal that heard the matter, was tasked with determining whether the dismissal was unfair. The central legal issues were whether the dismissal was within the range of responses open to Sydney Trains and whether the decision-making process adhered to procedural fairness.

Sydney Trains argued that the dismissal was justified due to Dhillon's alleged involvement in a workplace incident and her failure to follow instructions. Dhillon contended that the dismissal was unfair and that Sydney Trains had not followed proper procedures. The tribunal examined the evidence and considered the severity of Dhillon's actions and the adequacy of the disciplinary process. The tribunal found that while Dhillon's actions were serious, the dismissal process did not fully comply with procedural fairness. Sydney Trains did not adequately investigate the incident or provide Dhillon with an opportunity to respond to the allegations.

The tribunal concluded that the dismissal was harsh, unjust, or unreasonable due to procedural flaws. Consequently, the tribunal ordered Sydney Trains to reinstate Dhillon to her previous position and pay her lost wages. Additionally, the tribunal mandated that Sydney Trains review and revise its disciplinary procedures to ensure compliance with procedural fairness in future cases.

Orders