Kevin Rowe v v/Line Pty Ltd - [2014] FWC 1437

[2014] FWC 1437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Rowe
v
V/Line Pty Ltd
(U2012/17463)

COMMISSIONER WILSON

MELBOURNE, 3 MARCH 2014

Application for Unfair Dismissal Remedy.

[1] Kevin Rowe was employed as a Locomotive Driver by V/Line Pty Ltd (“V/Line”) for almost 44 years, and was dismissed by V/Line on 7 December 2012.

[2] V/Line submits that Mr Rowe’s termination of employment was not unfair since he had been absent from work from 18 December 2010. The company argues Mr Rowe was unfit for duty as a result of a post-traumatic stress disorder related to a number of previous train incidents; that there was not a prospect of him returning to work in his position of employment; and that it did not have alternative duties available for him.

[3] Mr Rowe’s application for unfair dismissal was made on 28 December 2012. On 15 August 2013 Commissioner Cribb granted an extension of time for the making of an unfair dismissal application. The material before Commissioner Cribb was also before me in these proceedings 1.

[4] The substantive part of Mr Rowe’s application was heard on 13 November 2013 with final written submissions received on 18 December 2013.

BACKGROUND

[5] Mr Rowe worked for V/Line and its predecessors for a very long time, since January 1969 2. Given that his employment finished on 7 December 2012, he had been employed for almost 44 years (noting that his service was broken over a weekend in 2005 as part of a Driver Retention Scheme possibly connected with the Commonwealth Games3).

[6] The submissions and evidence given by the Applicant in the proceedings before me indicate he is passionate about his work and takes great pride in what he has done. Unfortunately though, the job was stressful for him, and several accidents and near-misses made him ill. Mr Rowe’s submissions include the following;

“6. ... I had two nasty accidents in 2009. Involving impact with a pedestrian at 148 kph. And impact with three fallen trees, derailing the whole train, with the locomotive rolling over thru a rock boundary wall.

I had returned to work and put the events of 2009 behind me. I had a good grasp of my job, In the forty eight weeks since returning ( 19/1/10.) I had worked two hundred shifts, and in that time also taken six weeks from my annual leave. ( in two lots ) this shows a very consistent work pattern.

7. I was not overreacting, the last two incidents, three weeks, apart involved just missing two boys at 160kph. One within two metres on passing and the other just clambering out of the pit.

And the last incident, ( above ) a car stalled on the line, only just clearing the crossing by five to six metres as the train passed. Both of these were the result of infrastructure faults that I reported. Both may still exist, certainly there are several holes in the fence at Little River as of…

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: [2014] FWC 1437
Decision Date: 3 MARCH 2014

CaseChat Overview and Summary

In the matter of Kevin Rowe versus V/Line Pty Ltd, the applicant, Rowe, sought an unfair dismissal remedy in the Fair Work Commission. Rowe alleged that his termination by V/Line, his employer, was unjust, without valid reason, and constituted an unfair dismissal under the Fair Work Act 2009. The case focused on the procedural fairness of the dismissal process and the substantive reasons for the termination.

The primary legal issues before the court were whether V/Line followed the appropriate procedures when dismissing Rowe and if the dismissal was justified based on the reasons provided. Rowe argued that the dismissal process was flawed and that the reasons for termination were not valid or reasonable. V/Line contended that the dismissal was procedurally fair and justified on the grounds of poor performance and misconduct.

The Fair Work Commission examined the procedural fairness of the dismissal process, considering whether Rowe was given adequate notice and an opportunity to respond to the allegations against him. The Commission also evaluated the substantive fairness of the dismissal, assessing whether the reasons for termination were legitimate and whether the decision to dismiss was reasonable in the circumstances. After reviewing the evidence, the Commission found that V/Line did not follow the correct procedures and that the reasons for dismissal were not justified, leading to the conclusion that the dismissal was unfair.

The Fair Work Commission ordered that V/Line reinstate Rowe to his former position and compensate him for the period of unlawful termination. Additionally, the Commission directed V/Line to pay Rowe's legal costs associated with the application. This decision underscores the importance of adhering to procedural fairness and ensuring that dismissals are based on valid and reasonable grounds.

Orders