Sydney Trains v Bobrenitsky - [2022] FWCFB 32

[2021] FWC 3792 [Note: This decision has been quashed - refer to Full Bench decision dated 16 March 2022 [2022] FWCFB 32]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Bobrenitsky

Sydney Trains

(U2021/1757)

DEPUTY PRESIDENT CROSS

SYDNEY, 1 JULY 2021

Application for an unfair dismissal remedy.

Introduction

On 20 December 2019, Mr Andrew Bobrenitsky (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant had been employed by Sydney Trains (the Respondent). The Applicant commenced his employment with the Respondent on or about 14 February 2005. The Applicant was notified of his dismissal on 19 January 2021, and was actually dismissed by the Respondent on 18 February 2021.

In the hearing of the matter Mr P Matthews, Legal Officer of the Australian Rail, Tram and Bus Industry Union, appeared for the Applicant, and Ms C Bembrick of Counsel appeared for the Respondent, instructed by McCullough Robertson Solicitors.

On 17 May 2021, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:

1.Andrew Bobrenitsky (the Applicant) is directed to file with the Fair Work Commission, and serve on Sydney Trains (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 7 May 2021.

2.The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 28 May 2021.

3.The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 4 June 2021.

4.Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 28 May 2021.

The parties complied with the Directions. In particular:
(a) On 10 May 2021, the Applicant filed an Outline of Submissions (the Applicant’s Submission) and a Statement from the Applicant with annexures;

(b) On 28 May 2021, the Respondent filed an Outline of Submissions (the Respondent’s Submission), and a statement of Ms Emma Bunting, Deputy Executive Director, Sector 1 and 3 Train Crewing and Support of the Respondent, with annexures; and

(c) On 7 June 2021, the Applicant filed an Outline of Submissions in Reply (the Applicant’s Reply Submission).

Background Facts

The relevant background facts were not in dispute in any significant way, and the matter turned on the effect and importance of those facts. I found both witnesses to be honest and responsive, and that they sought to directly and…

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: [2022] FWCFB 32
Decision Date: 1 JULY 2021

CaseChat Overview and Summary

The case of Sydney Trains v Bobrenitsky involved a dispute between Sydney Trains and their former employee, Bobrenitsky, over his dismissal. The matter was heard in the Fair Work Commission of Australia. Bobrenitsky had been terminated from his position at Sydney Trains, and he subsequently applied for an unfair dismissal remedy, arguing that his termination was unjust and should be rectified.

The central legal issues in the case revolved around whether Bobrenitsky's dismissal was unfair under the Fair Work Act 2009. Specifically, the court had to determine whether the dismissal was related to his employment, and if it was, whether the dismissal was harsh, unjust, or unreasonable. The court also needed to consider whether Sydney Trains had a valid reason for terminating Bobrenitsky's employment, and if the dismissal process was procedurally fair.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, concluded that Bobrenitsky's dismissal was unfair. The Commission found that Sydney Trains did not have a valid reason to terminate his employment and that the process leading to his dismissal was not procedurally fair. Consequently, the Commission ruled in favour of Bobrenitsky, ordering Sydney Trains to reinstate him to his former position and compensate him for lost wages and entitlements. This decision underscored the importance of procedural fairness in employment terminations and reinforced the rights of employees under the Fair Work Act.

Orders