Mark Lawrence v Metro Trains Melbourne Pty Ltd - [2021] FWC 1078

[2021] FWC 1078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Lawrence

Metro Trains Melbourne Pty Ltd

(U2020/11779)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 30 MAY 2021

Application for an unfair dismissal remedy.

On 31 August 2020 Mr Mark Lawrence (the Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal by Metro Trains Melbourne Pty Ltd (Metro Trains, the Respondent).

Mr Lawrence was dismissed from his employment on 18 August 2020 at the initiative of the employer for ‘serious misconduct’. The dismissal took effect immediately. Mr Lawrence does not deny the incident occurred however denies it occurred in the manner described by Metro Trains. He also denies that the conduct was serious misconduct and submits his dismissal was unfair. Mr Lawrence is seeking reinstatement.

Background and case outline

Mr Lawrence has been employed by Metro Trains and its predecessors since March 2002.[1] Until 2007, Mr Lawrence worked as an Authorised Officer (AO). He was then a trainee train driver and from October 2009 worked as a full-time qualified train driver.[2]

Metro Trains operates the metropolitan public railway network in Melbourne and surrounding suburbs as a franchisee. The franchisor is the Victorian Department of Transport.[3]

Mr Lawrence was summarily dismissed for a physical altercation with a member of the public (Mr Raymund, to be referred to as Mr R) that occurred on Sunday 9 August 2020 (the incident). Mr R suffered a head wound as a result of the interaction and the police and an ambulance were called to the scene.[4]

On that day, Mr Lawrence was at the Spanish Donut Café located within the Flinders Street Station concourse.[5] Mr Lawrence contends that at approximately 3:10pm while he was waiting for his coffee, Mr R stood shoulder to shoulder with him. Mr Lawrence submits that at that time, Melbourne was at the height of the coronavirus [COVID-19] infection spread and Mr R was not wearing a mask.[6] Mr Lawrence submits he asked Mr R to move away several times but Mr R refused and, following his third request to move away, became very angry and made threats to kill.[7] Mr Lawrence submits he tried to push Mr R away however Mr R lunged at him, and in a split-second decision to contain the threat he manoeuvred Mr R to the ground and held him down while waiting for assistance.[8] Mr Lawrence says that at no stage did he hit or punch Mr R, he merely restrained him in a manner consistent with his earlier training as an Authorised Officer.[9]

Metro Trains contend that as part of the altercation, Mr Lawrence physically pushed Mr R, with excessive force, then proceeded to grab Mr R by the neck and pin him to the ground. While pinning Mr R to the ground Metro submits Mr Lawrence hit him in the face.[10] They say Mr…

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 1078
Decision Date

CaseChat Overview and Summary

The Applicant, Mr Mark Lawrence, applied to the Fair Work Commission (FWC) for an unfair dismissal remedy. Mr Lawrence was dismissed from his employment with Metro Trains Melbourne Pty Ltd (Metro Trains) on 18 August 2020. The primary issue for the FWC to decide was whether Mr Lawrence's dismissal was harsh, unjust or unreasonable. The FWC found that the dismissal was unfair because there was no valid reason for Mr Lawrence's dismissal. The FWC found that the first two allegations against Mr Lawrence were not substantiated because they were not consistent with the CCTV footage and Mr Lawrence's evidence. The third allegation was not presented to Mr Lawrence prior to his dismissal and he was not given an opportunity to respond to the allegation. The FWC found that Mr Lawrence's dismissal was harsh, unjust and unreasonable because there was no valid reason for his dismissal and he was not given an opportunity to respond to all of the allegations against him. The FWC ordered that the parties file submissions on remedy.

Orders