Jamie Dransfield v Rail Commissioner - [2012] FWA 8444

[2012] FWA 8444

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Dransfield
v
Rail Commissioner
(U2012/5603)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 12 OCTOBER 2012

Termination of employment - valid reason - misconduct - initiation of physical contact - not harsh, unjust or unreasonable.

[1] On 2 March 2012 Mr Dransfield lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with the Rail Commissioner. The application was not settled through the conciliation process and was referred to me for arbitration on 11 September 2012. It was the subject of an arbitration on 19 and 20 September 2012. At this hearing, Mr Dransfield was represented by Mr Phillips of the Australian Rail, Tram and Bus Industry Union-South Australian and Northern Territory Branch, and the Rail Commissioner, by Mr Moritz.

[2] Section 396 of the FW Act requires that I determine a number of preliminary issues before considering the merits of Mr Dransfield’s application. I am satisfied that Mr Dransfield’s application was made within the statutory time limit.

[3] Mr Dransfield was engaged under the provisions of the Rail Commissioner Rail Operations Enterprise Agreement 2012. The Rail Commissioner is a body corporate under the Rail Commissioner Act 2009. That same Act authorises the appointment of staff. The distinction between state and federal covered employees is, at best, an administrative one. However, in this situation I am satisfied that the Rail Commissioner Act 2009, read in concert with the Statutes Amendment (National Industrial Relations System) Act 2009 and the FW Act, mean that the Rail Commissioner is a national system employer. I note that non-operational staff involved in the South Australian passenger rail system are regarded as South Australian public sector employees. Both parties to this matter have indicated that they regard Mr Dransfield as a national system employee protected from unfair dismissal, and I have accepted this position.

[4] The Small Business Fair Dismissal Code does not apply and the termination of Mr Dransfield’s employment was not a redundancy situation.

Background

[5] Mr Dransfield was a Passenger Services Assistant (PSA) from December 2004. His duties primarily involved ensuring compliance with the Passenger Transport Act, the provision of advice to rail system customers and customer service protections. 1

[6] On 1 December 2011 Mr Dransfield was working at the Mawson Lakes Interchange facility where passengers had to transfer from trains to buses. He was involved in an incident involving two men he saw get off a train and then attempt to board a bus. There is no dispute that the men were behaving erratically and appeared to be intoxicated. There is no dispute that one of the men was abusive and threatening toward another PSA shortly before the men arrived at the bus. While the men did not actually enter the bus, Mr Dransfield stopped near the bus door and advised the men that they were not permitted to…

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.

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Details

Case: [2012] FWA 8444
Decision Date: 12 OCTOBER 2012

CaseChat Overview and Summary

Jamie Dransfield, the applicant, brought an appeal against the Rail Commissioner, the respondent, before the Fair Work Commission. The appeal sought to challenge the Rail Commissioner's decision to terminate Dransfield's employment, which was based on an allegation of misconduct. Specifically, the Rail Commissioner claimed that Dransfield had initiated physical contact with a colleague, an act that was deemed to warrant termination. The case was heard by the Fair Work Commission, which was tasked with determining whether the termination was justified.

The central legal issue before the court was whether the termination of Dransfield's employment was for a valid reason, specifically whether the act of initiating physical contact with a colleague constituted misconduct severe enough to justify dismissal. Additionally, the court needed to assess whether the termination decision was harsh, unjust, or unreasonable. The court was required to examine the evidence presented, including the nature of the physical contact and the context in which it occurred, to determine if it warranted such a severe employment consequence.

The court considered the evidence and arguments presented by both parties. It found that the act of initiating physical contact did amount to misconduct. However, in assessing whether the termination was harsh, unjust, or unreasonable, the court concluded that the severity of the physical contact did not justify the termination. The court emphasised that while the act was serious, the termination did not meet the threshold of being harsh, unjust, or unreasonable. Therefore, the appeal was dismissed, and the decision to terminate Dransfield's employment was upheld.

The final orders of the court confirmed the Rail Commissioner's decision to terminate Dransfield's employment, while also noting that the termination was not harsh, unjust, or unreasonable. The court's decision highlighted the importance of considering the proportionality of the disciplinary action in relation to the misconduct.

Orders