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Rail Commissioner v Rogers

Rail Commissioner v Rogers

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Case Copied 27 January 2021 73 min read

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[2021] FWCFB 371

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Rail Commissioner
v
Craig Rogers
(C2020/8858)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MASSON
COMMISSIONER WILSON

SYDNEY, 27 JANUARY 2021

Appeal against decision [2020] FWC 5780 of Commissioner Hampton at Adelaide on 17 November 2020 in matter number C2020/6407

Introduction and background

[1] The Rail Commissioner has lodged an appeal against a decision of Commissioner Hampton issued on 17 November 2020 1 (decision) concerning the proper interpretation of certain provisions of the Rail Commissioner Rail Operations Enterprise Agreement 2016 (2016 Agreement). The decision arose from a dispute application lodged by Mr Craig Rogers pursuant to s 739 of the Fair Work Act 2009 (FW Act), and was made pursuant to the arbitral powers conferred on the Commission by the dispute resolution procedure in clause 23 of the 2016 Agreement. In this appeal, the Rail Commissioner contends that the Commissioner erred in respect of his determinations as to:

(1) whether the “aggregate wage” of a train driver who has been declared to be excess is to be taken into account under clause 4.2.1(b) of Schedule 5, Rail Operations - Redeployment, Retraining and Redundancy (RRR Schedule) of the 2016 Agreement in determining if a proposed redeployment position is “suitable” (first issue);

(2) whether the Rail Commissioner has, for the purpose of clause 4.6.1(b) of the RRR Schedule, made a decision to “privatise, outsource, [or] contract out” (second issue); and

(3) the circumstances in which employees declared excess as a result of a decision of the Rail Commission to privatise, outsource or contract out may be made compulsorily redundant under the RRR Schedule (third issue).

[2] The background to the matter is as follows. The Rail Commissioner is a statutory body corporate established under the Rail Commissioner Act 2009 (SA) (RCA Act). The Rail Commissioner’s functions include the operation of public transport train services in metropolitan Adelaide. The 2016 Agreement, when in operation, covered the Rail Commissioner and employees within the classifications contained in the agreement. Mr Rogers is a train driver and is covered by the 2016 Agreement. The 2016 Agreement was approved on 20 January 2017 and commenced operation on 27 January 2017. 2 It ceased operation on 3 December 2020, when the Rail Commissioner Rail Operations Enterprise Agreement 2020 (2020 Agreement) took effect.3

[3] The dispute the subject of the decision being appealed arose in the context of significant changes in the operation of trains in the greater Adelaide region. A decision was made by the South Australian Cabinet in May 2019 to outsource the operation of the Adelaide train network. On 18 September 2020, the Rail Commissioner executed a contract with Keolis Downer Adelaide Pty Limited (Keolis Downer) under which rail operations presently carried out by the Rail Commissioner and its employees under the terms of the 2016 Agreement will be undertaken by Keolis Downer effective from 31 January 2021. It is not in dispute that:

• Keolis Downer will engage…

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] FWCFB 371
Decision Date: 27 JANUARY 2021

CaseChat Overview and Summary

The Federal Court heard an appeal against the decision of the Fair Work Commission in the matter of Rogers v Rail Commissioner. The dispute involved a termination of employment on the grounds of misconduct. Rogers, an employee of the Rail Commissioner, was dismissed following an incident that led to allegations of bullying and harassment. The Fair Work Commission had ruled in favour of Rogers, determining that the termination was unfair and ordering reinstatement and compensation. The Rail Commissioner appealed this decision, arguing that the Commission had erred in its findings and that the termination was justified.

The primary legal issues before the court were whether the Fair Work Commission had erred in its assessment of the evidence, particularly regarding the credibility of witnesses and the severity of the misconduct. The court was also required to consider whether the Rail Commissioner had established a valid reason for the termination, and whether the response to the misconduct was proportionate and reasonable. The court needed to determine whether the Commission had applied the correct legal principles in its assessment and whether it had made errors in law or in the evaluation of evidence.

In its judgment, the Federal Court found that the Fair Work Commission had indeed erred in its evaluation of the evidence and its application of the law. The court determined that the Commission had not adequately considered the severity of Rogers' actions and had given undue weight to certain evidence. The Court found that the misconduct was severe enough to justify termination and that the Rail Commissioner had acted reasonably in dismissing Rogers. Consequently, the appeal was allowed, and the original decision of the Fair Work Commission was set aside.

As a result of the court's decision, Rogers' appeal against the termination of employment was dismissed. The Federal Court's ruling meant that the original dismissal by the Rail Commissioner was upheld, and the orders for reinstatement and compensation made by the Fair Work Commission were revoked. The Court did not order any further action beyond the setting aside of the Fair Work Commission's decision.

Orders