Julian Strangio v Sydney Trains - [2023] FWCFB 121

[2023] FWCFB 121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Julian Strangio

Sydney Trains

(C2023/2254)

VICE PRESIDENT ASBURY

DEPUTY PRESIDENT MASSON
DEPUTY PRESIDENT O’NEILL

BRISBANE, 7 JULY 2023

Appeal against decision [2023] FWC 730 of Commissioner McKenna at Sydney on 5 April 2023 in matter number U2022/11462 – permission to appeal refused.

Mr Julian Strangio (the Appellant) worked for Sydney Trains (the Respondent) and its predecessors for 37 years until 1 December 2022, when he was dismissed.

The Appellant was dismissed for a breach of the Respondent’s code of conduct by not immediately reporting that on 10 May 2021 he had been charged with certain criminal offences. The Respondent first became aware of the charges through an anonymous tip-off almost one year later, in April 2022. The Appellant had been advised by his criminal defence lawyer to delay advising the Respondent until the charges and agreed facts had been settled with the Police Prosecutor. The settling of the charges did not occur until shortly before the court hearing regarding the finalised criminal charges in May 2022.

The Appellant applied to the Fair Work Commission for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). Commissioner McKenna determined that the Appellant’s dismissal was not unfair (the Decision).[1] The Appellant now seeks to appeal the Decision.

The appeal was heard on 6 June 2023 and both parties were granted permission to be legally represented.

Under s.400 and s.604 of the Act, the Appellant can only appeal the decision with the permission of the Full Bench. Under s.400, permission to appeal can only be granted if we are satisfied that it is in the public interest to do so.

For the following reasons, we have decided not to grant permission to appeal.

The Commissioner’s decision

The Commissioner commenced her Decision recording her satisfaction with the initial matters required to be considered under s.396 of the Act. The Commissioner then set out details of the Appellant’s extensive employment with the Respondent, the obligation on its employees under its code of conduct to immediately report if they have been charged with relevant criminal charges, the Appellant’s failure to notify his manager following being charged with 13 criminal offences, the anonymous tip off which led to the commencement of an investigation and the show cause process. The Commissioner then set out the contents of the Respondent’s letter advising the Appellant of its decision to dismiss him. The Respondent’s reasons for the dismissal set out in the letter were the failure to notify the Respondent of the charges and that the Appellant pleaded guilty and was convicted of 12 serious criminal offences. The Respondent also took into account that the Appellant had previous criminal convictions. [2]

The Commissioner then set out the details of the charges initially laid against the Appellant, his subsequent conviction of some amended charges and that no conviction was recorded for some charges.

The Commissioner then set out the Appellant’s submissions relating…

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 Julian Strangio 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: [2023] FWCFB 121
Decision Date: 7 JULY 2023

CaseChat Overview and Summary

Julian Strangio, who had worked for Sydney Trains for 37 years, sought to appeal a decision of the Fair Work Commission that his dismissal for failing to report criminal charges against him was not unfair. The Full Bench of the Fair Work Commission considered whether to grant permission to appeal the decision of the Commissioner, who found that Mr Strangio's dismissal was not harsh, unjust or unreasonable. The Full Bench examined the grounds of appeal, focusing on whether the Commissioner failed to properly consider the impact of Mr Strangio's reliance on his criminal lawyer's advice to delay reporting the charges. The Full Bench concluded that the Commissioner had appropriately considered the submissions made by Mr Strangio, and there was no error in her approach. The Full Bench found that the Commissioner's conclusion that the dismissal was not harsh, unjust or unreasonable was clearly open to her on the evidence. The Full Bench also determined that it was not in the public interest to grant permission to appeal, as the decision did not manifest an injustice or result in a counter-intuitive outcome. Accordingly, the appeal was dismissed, and permission to appeal was refused.

Orders