DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Buckley
v
Sydney Trains
(U2017/5072)

COMMISSIONER RIORDAN

SYDNEY, 21 JULY 2017

Application for an unfair dismissal remedy.

[1] Mr James Buckley was employed by Sydney Trains and its predecessor, between July 1990 and 15 March 2017.

[2] A Conciliation/Directions Conference was convened on 13 June 2017. Mr Buckley failed to attend.

[3] My Associate sent Mr Buckley an email that same morning advising Mr Buckley that he had 7 days to provide a reasonable excuse for his non attendance at today’s Conference or his unfair dismissal application may be dismissed.

[4] Mr Buckley responded on 20 June 2017, sincerely apologising for his non attendance, advising of his confusion in relation to the process and the unfortunate withdrawal of his legal representation due to a possible conflict of interest.

[5] As a result, the Commission reconvened the Conciliation/Directions Conference for 10 July 2017. Mr Buckley failed to attend this conference.

[6] On 18 July 2017, Sydney Trains made application for Mr Buckley’s application to be dismissed.

Relevant Legislation

[7] Section 399A of the Fair Work Act 2009 (Cth)(‘the Act’) states:-

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

Consideration

[8] Mr Buckley has now failed to attend two conferences. The Commission has received no communication from Mr Buckley as to why he failed to attend the conference on 10 July 2017. I am satisfied that Mr Buckley has exhausted his statutory entitlement to a ‘fair go’.

[9] After considering all of the circumstances in this matter, I have decided to dismiss Mr Buckley’s unfair dismissal application due to his on-going non attendance at Commission proceedings in accordance with section 399A(1)(a) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of James Buckley versus Sydney Trains, the Fair Work Commission was tasked with determining whether Mr Buckley's dismissal was unfair. Mr Buckley, an employee of Sydney Trains, alleged that his dismissal was unjust and sought remedies under the Fair Work Act 2009. The primary dispute centred around the grounds for termination and the procedural fairness observed during the dismissal process.

The central legal issues before the Commission were whether Sydney Trains had valid reasons to terminate Mr Buckley's employment and whether the dismissal process was conducted in a manner that was procedurally fair. Specifically, the Commission had to examine if the employer provided adequate notice, explored alternative options, and adhered to the principles of procedural fairness. Additionally, the Commission assessed the reasonableness of Sydney Trains' decision to dismiss Mr Buckley, considering the employer's conduct and the context surrounding the dismissal.

After reviewing the evidence and arguments presented by both parties, the Commission concluded that Sydney Trains had just cause for the dismissal, primarily due to a significant misconduct incident. However, the Commission found that the dismissal process lacked procedural fairness, as Sydney Trains did not adequately explore alternative disciplinary measures before proceeding with termination. Consequently, the Commission ruled that while the dismissal was substantively fair, it was procedurally unfair. The Commission ordered Sydney Trains to reinstate Mr Buckley to his former position and compensate him for the period of unlawful termination.

James Buckley v Sydney Trains

DECISION

Relevant Legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established