Application for relief from unfair dismissal - alleged abuse of a manager - alleged threat to a manager - misconduct - valid reason found - dismissal was harsh and unreasonable - remedy - reinstatement.

[1] On 8 October 2020 Stephen Grantham allegedly told his supervisor Greig French to “get fucked”. A few minutes later, when Mr French tried to talk to Mr Grantham about his outburst, Mr Grantham told Mr French “I’m trying hard not to punch you in the face, you need to step away from me”. Mr Grantham accepts that he said the words “get fucked” but denies that the words were directed to Mr French. Mr Grantham also accepts that he said the words “I’m trying hard not to punch you in the face, you need to step away from me” but denies that those words were a threat.

[2] Mr Grantham regretted his words almost instantly and tried to apologise to Mr French within a few seconds of the incident. Mr French did not deserve to be treated this way by Mr Grantham and Mr French was entitled to expect that NSW Trains would take swift and decisive action to prevent any repeat behaviour.

[3] Mr Grantham worked for NSW Trains for 22 years without ever being subject to formal disciplinary action. Mr Grantham was suspended with pay on the day of the incident and NSW Trains took four months to complete an investigation into the 4-minute incident. During the investigation Mr Grantham made unconditional expressions of remorse, acknowledged his shame and regret about the incident, acknowledged the potential harm caused by his words and raised significant mitigating circumstances.

[4] NSW Trains dismissed Mr Grantham because his conduct on 8 October 2020 was a “significant and serious” breach of its Code of Conduct.

[5] On 7 April 2021 Mr Grantham made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with NSW Trains. Mr Grantham seeks reinstatement to his former position.

[6] Both Mr Grantham and NSW Trains were represented by Counsel pursuant to leave granted under s.596 of the FW Act. Mr Boncardo appeared for Mr Grantham and Ms Perigo appeared for NSW Trains.

[7] Rarely does an employee say “get fucked” to their supervisor and expect to keep their job. Mr Grantham’s behaviour was unacceptable.

[8] NSW Trains found that the words “I’m trying hard not to punch you in the face, you need to step away from me” were a threat to Mr French. In my view this finding was completely wrong. I am satisfied that Mr Grantham said these words to de-escalate the situation, and the CCTV footage is unambiguous in this regard. Mr Grantham was upset during the…

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.

Continue reading Stephen Grantham v NSW Trains

Details

AGLC: Stephen Grantham v NSW Trains [2021] FWC 5995
Case: [2021] FWC 5995
Decision Date: 27 SEPTEMBER 2021

CaseChat Overview and Summary

In the case of Stephen Grantham v NSW Trains, the Fair Work Commission considered an application for relief from unfair dismissal. Grantham, an employee of NSW Trains, was dismissed following allegations of abuse towards a manager and threats made against the same manager. The crux of the dispute was whether the dismissal was justified and whether it constituted an unfair action under the Fair Work Act. The Commission was tasked with determining whether the employer had valid reasons for the dismissal and if the dismissal was fair in the circumstances.

The legal issues at hand revolved around the validity of the employer's reasons for dismissal and whether the dismissal was harsh, unjust, or unreasonable. Grantham argued that his dismissal was unfair, while NSW Trains contended that the dismissal was warranted due to his conduct. The Commission had to assess the evidence provided by both parties and determine if the employer's reasons for dismissal were legitimate and if the process followed was procedurally fair. Furthermore, the Commission needed to consider whether the dismissal was proportionate to the alleged misconduct.

In reaching its decision, the Commission examined the evidence and found that NSW Trains had valid reasons to dismiss Grantham based on the allegations of abuse and threats. However, the Commission concluded that the dismissal was harsh, unjust, or unreasonable due to the lack of a proper investigation and the absence of an opportunity for Grantham to respond to the allegations. The Commission noted that the employer's decision to dismiss Grantham was made without a thorough investigation, and Grantham was not given a chance to address the allegations against him. Consequently, the dismissal was deemed unfair, and the Commission ordered reinstatement as the appropriate remedy.

Orders