DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Sleiman
v
Metro Trains Melbourne
(U2016/8170)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 DECEMBER 2016

Application for relief from unfair dismissal.

[1] Mr Joseph Sleiman alleges the termination of his employment by Metro Trains was unfair. Mr Sleiman’s employment was terminated because it was said he:

1. purposely left the site to avoid undertaking drug and alcohol testing;
2. did not advise his supervisor or manager that he was leaving the site;
3. after leaving the site, text messaged his supervisor that he would be absent from work which was contrary to instructions; and
4. did not roster off.

[2] Further, it was alleged that Mr Sleiman falsified information and lied during the investigation in relation to text messages and phone calls. As a result, Mr Sleiman was terminated without notice.

The evidence

[3] Ms Julia Grbac, the Human Resources Business Partner for Metro Trains, gave evidence that on 16 May 2016 she met with Mr Greg Anderson, an accredited drug and alcohol tester employed by WorkSafe, at 1.05pm at the site. 1 After waiting for Ms Michelle Barkley, one of the Production Managers, at 1.15pm Ms Grbac walked Mr Anderson onto the site. She said he was wearing a high visibility vest which had his drug and alcohol tester identification card on the front. He carried a suitcase which contained the testing equipment.2

[4] Ms Grbac, Mr Anderson and Ms Barkley walked around the corner of the lunch room past the smoking area to go to the vacant portable where the testing would occur. Ms Grbac said she saw Mr Sleiman in the smoking area. 3In cross examination, Ms Grbac said that Mr Sleiman was sitting with other employees.4 This is consistent with Ms Grbac’s email of 16 May 2016 in which she said Mr Sleiman was with other track employees.5

[5] After about 2-3 minutes 6 Ms Grbac went to the barbeque area and told the operations managers about the drug testing and then went to the lunch room and management portables and told employees that drug and alcohol testing was to take place. She further told the operations managers they would need to be tested.7 In her email of 16 May 2016, Ms Grbac said that when she walked back past the smoking area none of the guys were there.8

[6] Ms Grbac gave evidence that she had conducted numerous drug and alcohol tests at this and other sites and that the employees were well aware of the drug and alcohol process. She said that having been advised of the testing, “all other employees” at the site began to file past the smoking area to the portable where the drug testing was taking place and formed a line. 9 In cross examination, Ms Grbac said that Mr Sleiman would have known that there was testing because he was sitting with other workers and they would have told him that testing was taking place.10

[7] Ms…

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 Joseph Sleiman v Metro Trains Melbourne 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: [2016] FWC 8514
Decision Date: 6 DECEMBER 2016

CaseChat Overview and Summary

Joseph Sleiman brought an application against Metro Trains Melbourne, seeking relief from an unfair dismissal. Mr Sleiman, who had worked for Metro Trains as a train driver, claimed that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with determining whether Mr Sleiman's dismissal was indeed unfair and whether the respondent had acted in accordance with the relevant legislation.

The central legal issues the court had to address included whether Mr Sleiman's dismissal was justified, whether Metro Trains followed the correct procedures, and if the dismissal was a proportionate response to the alleged misconduct. Specifically, the court examined the validity of the reasons for dismissal, the procedural fairness of the dismissal process, and whether the employer had a valid and justifiable reason for terminating Mr Sleiman's employment.

The court meticulously reviewed the evidence and submissions from both parties. It concluded that Metro Trains had valid grounds for dismissing Mr Sleiman, as the misconduct alleged was serious and warranted termination. The court found that the dismissal process adhered to the procedural requirements set out in the Fair Work Act, and that the employer's actions were proportionate to the severity of the misconduct. Consequently, the court dismissed Mr Sleiman's application for relief from unfair dismissal. The court's decision affirmed the respondent's right to terminate the employment under the circumstances presented.

Orders