Julian Strangio v Sydney Trains - [2023] FWC 730

[2023] FWC 730

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Julian Strangio
v

Sydney Trains

(U2022/11462)

COMMISSIONER MCKENNA

SYDNEY, 5 APRIL 2023

Application for an unfair dismissal remedy

Julian Stangio (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), in which he seeks an unfair dismissal remedy in relation to his termination of employment by Sydney Trains (“the respondent”).

Preliminary matters

As to the initial matters to be considered, as set out in s.396 of the Act, there was no issue, and I otherwise find, that: the application was made within time; the applicant is a person who was protected from unfair dismissal; the respondent is not a small business, with the result that consideration of the Small Business Fair Dismissal Code does not arise; and the termination of employment was not a genuine redundancy.

Background

The applicant commenced employment with a predecessor to Sydney Trains in October 1985, when he was aged 16 years. Over the years, the applicant made his way through the employment ranks from junior station assistant to, at the time of dismissal, Station Duty Manager, Level 4 (under the terms of the Sydney Trains Enterprise Agreement 2018). The applicant had been employed for a period of 37 years prior to receiving confirmation of advice about his dismissal on 1 December 2022.

The applicant was a well-regarded employee in terms of performance. The respondent’s decision to dismiss the applicant arose against a discrete conduct-related matter involving a breach of the code of conduct that applies to employees of the respondent (and a number of other NSW transport agencies), namely Our Code of Conduct (“Code of Conduct”). The breach was a failure by the applicant to report that he had been charged with certain criminal offences, contrary to the reporting obligations in clause 14 of the Code of Conduct. Shortly stated, clause 14 of the Code of Conduct imposes an obligation on employees to immediately make a report if they have been the subject of relevant criminal charges. Specifically in this case, the applicant did not immediately notify his manager that on 10 May 2021 he had been charged by the NSW Police with 13 criminal offences (“the May 2021 Charges”). Matters came to the attention of the respondent approximately one year after the charges had been laid, as a result of an anonymous tip-off. The tip-off incorrectly advised the respondent that the applicant had by then been convicted of charges (around the time of the tip-off, charges were still pending and had not been determined by a court). Consequent upon the anonymous tip-off, the respondent commenced an investigation.

The investigation led to allegations and, in due course, a show cause process, and other associated transport-specific review/appeal processes. The dismissal letter was dated 24 October 2022. Following the applicant’s exercise of certain appeal mechanisms, the original dismissal decision was confirmed in a subsequent letter dated 25 November 2022 (which was given to the applicant on 1…

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: [2023] FWC 730
Decision Date: 5 APRIL 2023

CaseChat Overview and Summary

Julian Strangio sought an unfair dismissal remedy against Sydney Trains in relation to his termination of employment. The Fair Work Commission was required to decide whether the dismissal was harsh, unjust or unreasonable. The Commission found that there was a valid reason for the dismissal related to the applicant's conduct in failing to report criminal charges in accordance with the Code of Conduct. The applicant had not notified his manager that he had been charged with 13 criminal offences, including serious drug-related offences, as required by the Code of Conduct. The Commission accepted that the applicant had acted on legal advice not to report the charges until they were settled, but found that the advice did not excuse the applicant's failure to comply with the mandatory reporting obligation under the Code of Conduct. The Commission also found that the dismissal was not disproportionate to the applicant's conduct and that the respondent had followed proper procedures in effecting the dismissal. The applicant's application for an unfair dismissal remedy was dismissed.

Orders