Mahamed Ali v Sydney Trains - [2024] FWC 33

[2024] FWC 33

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mahamed Ali
v

Sydney Trains

(U2023/3993)

COMMISSIONER MATHESON

SYDNEY, 8 JANUARY 2024

Application for an unfair dismissal remedy – breach of policies and procedures – record keeping for credit card expenditure – provision of card details to other employees - dismissal not unfair – application dismissed.

On 10 May 2023, Mr Mahamed Ali (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Sydney Trains (Respondent). The Applicant seeks reinstatement and orders for continuity of employment and restoration of lost pay.

When can the Commission order a remedy for unfair dismissal?

Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

There is a long timeline of events leading up to the dismissal of the Applicant. The factual background to the matter is as follows:

The Applicant commenced employment as Transit Officer in January 2003 for the then State Rail Authority at the age of 19.
The Applicant accepted voluntary redundancy from the then rail entity with an effective termination date of 31 January 2014. At that time the Applicant was a Senior Transit Officer.
The Applicant’s employment commenced with the Respondent, Sydney Trains in 2014 as a Cleaner in Charge.
In June 2015 the Applicant was appointed to the role of Area Manager in the Fleet…

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 Mahamed Ali 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: [2024] FWC 33
Decision Date: 8 JANUARY 2024

CaseChat Overview and Summary

Mahamed Ali (Applicant) applied to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy for his unfair dismissal from Sydney Trains (Respondent). The Applicant sought reinstatement and orders for continuity of employment and restoration of lost pay. The Commission found that the Applicant had been dismissed from his employment with the Respondent on 19 April 2023. The Commission found that the dismissal was not harsh, unjust or unreasonable and dismissed the application.

The Applicant had been employed by the Respondent since 2014 and had held a number of positions including Transit Officer, Senior Transit Officer, Cleaner in Charge, Area Manager, and Fleet Presentation Operations Manager South West. In August 2020 the Applicant was demoted to Area Manager for conduct which the Respondent found breached the Code of Conduct, Attendance and Leave Policy and Motor Vehicle Fleet Procedure. In particular, the Respondent found that the Applicant had failed to work the ‘actual work hours’ claimed and used the Respondent issued motor vehicle for non-work related proposes. The Applicant was off work and in receipt of workers’ compensation payments or ‘sick leave in lieu of W/Comp’ between 15 April 2021 and 13 May 2022. On 10 May 2022 the Respondent provided the Applicant with a letter dated 6 May 2022 advising him that its Workplace Conduct and Investigations Unit (WCIU) had commenced an investigation and that he was suspended from duty. The Respondent issued a letter on 14 July 2022 detailing six allegations that were the subject of an investigation. These allegations were that: between 22 February 2019 and 16 December 2020 the Applicant used his PCard to make purchases but did not supply any and/or adequate documentation; between 4 April 2019 and 16 February 2021 transactions were made using the PCard that had been issued to the Applicant which were non-compliant with the relevant ‘Sydney Trains Purchasing Card Policies and/or procedures’; on 14 February 2021 the Applicant purchased items on his PCard as personal or private expenditure; between 21 October 2021 and 5 April 2022 the Applicant used his PCard to attempt to make transactions while he was on workers’ compensation; from 25 January 2022 the Applicant did not declare and did not seek approval to engage in secondary employment; on or around 26 May 2022 the Applicant submitted to the Respondent/Transport for NSW (TfNSW) a State Insurance Regulatory Authority ‘Certificate of Capacity/Certificate of Fitness’ form falsely stating that he had not engaged in any form of paid employment or voluntary work for which he has received or was entitled to receive payment. On 7 December 2022, the Respondent issued the Applicant with a final disciplinary outcome letter confirming its decision to dismiss him. On 19 April 2023, the Respondent informed the Applicant that it had decided to terminate his employment and the dismissal took effect that day. The Applicant was paid 4 weeks’ pay in lieu of notice. The Applicant applied to the Commission under section 394 of the Act for a remedy for his unfair dismissal from the Respondent. The Commission found that there was a valid reason for the dismissal of which the Applicant was notified and afforded an opportunity to respond. The Respondent did not unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal. The dismissal was for reasons related to the Applicant’s conduct and not related to unsatisfactory performance. While the Respondent’s approach to the investigation and disciplinary process had deficiencies, including the delay in putting the allegations to the Applicant and significant length of time taken to bring the process to conclusion, and that the Applicant’s circumstances will mean that he will face some challenges in the near term, when the Commission weighed all the factors that it is to have regard to pursuant to section 387 of the Act, it was not persuaded that these factors outweighed the findings that there was a valid reason for the dismissal of which the Applicant was notified and afforded an opportunity to respond such that they tip the scales in a finding that the dismissal was harsh, unjust or unreasonable. Having considered each of the matters specified in section 387 of the Act, the Commission was satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. Not being satisfied that the dismissal was harsh, unjust or unreasonable, the Commission was not satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act. The Applicant’s application was therefore dismissed.

Orders