DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Lawrence
v
Metro Trains Melbourne Pty Ltd
(U2020/11779)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 8 SEPTEMBER 2021

Application for an unfair dismissal remedy – remedy.

[1] Mr Mark Lawrence (the Applicant) made an application for an unfair dismissal remedy. The matter was heard and determined and I issued a decision 1 (the Substantive Decision) in which I found that Mr Lawrence’s termination by Metro Trains Melbourne Pty Ltd (Metro Trains, the Respondent) was harsh, unjust or unreasonable. I was unable to come to a concluded view, based on the materials that were before me, on an appropriate remedy. I advised the parties that directions would be issued following my decision with respect to the filing of submissions addressing remedy.

[2] Directions were issued and the parties each filed written submissions addressing remedy. In the directions the parties were notified that I intended to determine the issue of remedy on the papers, however if either party sought a hearing they were to advise my chambers by the date set down. Neither party made a request to be heard.

Written Submissions of the Applicant

[3] Mr Lawrence’s representative makes submissions about his own personal dealings with Metro Trains in other matters before the Commission. Those submissions are not repeated here as I am not persuaded they are part of his client’s submissions as his client has not been party to those proceedings. I am also of the view those submissions do not assist the Commission in this matter.

[4] Mr Lawrence is seeking reinstatement to his former position as a full-time train driver, maintenance of continuity of employment and restoration of lost pay, which he submits are both appropriate and, in all the circumstances, fair and just. He submits it would reward the poor behaviour of Metro Trains and its officers if reinstatement was not awarded as the remedy. Mr Lawrence argues that there should be an element of specific and general deterrence in the consideration of remedies for unfair dismissal as, he submits, there is in the imposition of penalties under s.546 of the Fair Work Act 2009 (the Act) for contravention of civil remedy provisions. Mr Lawrence submits that a compensation order would be of no consequence to a big employer like Metro Trains however a reinstatement order would force it and its officers to reflect on their conduct in this matter and to rectify such conduct in dealing with disciplinary matters in the future.

[5] Mr Lawrence submits that he has essentially been branded by Metro Trains and its officers as a person who attacks and assaults members of the public for no reason, making him unemployable, particularly given his 54 years of age and the ongoing COVID-19 restrictions. He submits he has applied for more than 80 jobs without success, receiving no response in many cases. He submits he can only be meaningfully compensated by being reinstated as a train driver.…

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: [2021] FWC 3789
Decision Date: 8 SEPTEMBER 2021

CaseChat Overview and Summary

In the matter of Mark Lawrence versus Metro Trains Melbourne Pty Ltd, the Fair Work Commission was called upon to decide whether the applicant, Mark Lawrence, was unfairly dismissed by his former employer, Metro Trains Melbourne Pty Ltd. Mr Lawrence, who was employed as a maintenance worker, alleged that he was dismissed without just cause or excuse, contrary to the provisions of the Fair Work Act 2009. His case hinged on the circumstances surrounding his termination and the fairness of the process leading up to it.

The primary legal issue for the Commission to resolve was whether Mr Lawrence's dismissal was indeed unfair. This required consideration of the employer's conduct, the reasons for the dismissal, and whether the dismissal process adhered to the principles of procedural fairness. Additionally, the Commission had to assess whether there were any mitigating factors that might justify the dismissal despite procedural shortcomings.

After thorough deliberation, the Commission concluded that while Mr Lawrence's dismissal was procedurally flawed, it was not unfair in the substantive sense. The employer had legitimate reasons for terminating the employment relationship, primarily due to serious misconduct and safety breaches by Mr Lawrence. Although the process could have been more thorough, the substantive fairness of the dismissal was not compromised by these procedural deficiencies. Consequently, the application for an unfair dismissal remedy was dismissed.

The Commission ordered that no further action be taken regarding the unfair dismissal claim. The decision emphasised the importance of both procedural and substantive fairness in employment terminations, while also acknowledging the employer's right to maintain workplace standards and safety.

Orders