DECISION

Fair Work Act 2009
s.604—Appeal of decision

Sydney Trains
v
Trevor Cahill
(C2020/9228)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT MASSON
DEPUTY PRESIDENT MILLHOUSE

SYDNEY, 31 MARCH 2021

Appeal against decision [2020] FWC 6064 of Commissioner McKenna at Sydney on 7 December 2020 and order PR725091 on 16 December 2020 in matter number U2020/2911 – permission to appeal refused.

[1] Sydney Trains seeks permission to appeal and if granted, appeals a decision of Commissioner McKenna dated 7 December 2020 (Decision) 1 and order dated 16 December 2020.2 The Commissioner in the Decision was dealing with an application for an unfair dismissal remedy made by Mr Trevor Cahill (Mr Cahill) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). In so doing the Commissioner found that Mr Cahill had been unfairly dismissed, made an order for his reinstatement and for the restoration of lost pay.

[2] For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is therefore refused.

Background

[3] Before turning to the appeal, it is necessary to set out the background to the Decision.

[4] Mr Cahill commenced employment with RailCorp in NSW as a Customer Service Attendant in March 2000. After RailCorp was split into two entities (Sydney Trains and NSW Trains) in 2012 Mr Cahill’s employment transferred to Sydney Trains. At the time of his dismissal on 6 March 2020, Mr Cahill had been working at the Sydenham railway station. 3

[5] Mr Cahill took annual leave to undertake travel to Victoria for a skiing holiday at Mt Hotham on 1 August 2019. In doing so he used his Sydney Trains Employee Pass (Employee Pass) to secure a discount fare in respect of the Sydney/Albury leg of the XPT train service. He then paid a full fare to travel on a rail service from Albury Wangaratta in Victoria, from where he transferred to Mt Hotham by bus. 4

[6] On his return journey from Mt Hotham on 9 August 2019, Mr Cahill was required to travel to Melbourne via Bairnsdale (where he stayed overnight) before joining an XPT service departing from Melbourne and travelling to Sydney on 10 August 2019, which Mr Cahill boarded at approximately 7.50pm. 5 For the return journey from Melbourne to Sydney Mr Cahill booked a sleeper cabin for the entire trip.6 As he was unable to use his Employee Pass to secure a discount for the Melbourne/Albury leg of the journey he paid the full fare for that leg and used his Employee Pass to secure a discount on the Albury/Sydney leg of the journey. He paid $177.91 for the ticket for the return journey from Melbourne to Sydney, that price including the discount he received for the Albury/Sydney leg of the journey.7

[7] Shortly after the departure of the XPT service (badged as a NSW TrainLink service) from Melbourne, Mr Cahill was involved in a number of…

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 1137
Decision Date: 31 MARCH 2021

CaseChat Overview and Summary

Sydney Trains was the appellant in a case heard by the Full Bench of the Federal Circuit and Family Court of Australia. Trevor Cahill was the respondent. The case concerned the respondent's dismissal by the appellant and the subsequent appeal of the respondent's unfair dismissal claim to the Fair Work Commission (FWC). The appeal was to the Full Bench to determine whether the FWC's decision was legally sound.

The legal issues before the court were whether the FWC's decision to affirm the dismissal as unfair was supported by the evidence, and whether the FWC had correctly applied the relevant principles of law in making its decision. The court needed to determine if the FWC had erred in law or made a decision that was unreasonable. The court also needed to consider whether the respondent had been dismissed in circumstances that were harsh, unjust, or unreasonable, as required by the Fair Work Act 2009.

The Full Bench found that the FWC had correctly applied the relevant principles of law and that its decision was supported by the evidence. The court held that the FWC's assessment of the evidence and its conclusions about the fairness of the dismissal were not open to challenge. The Full Bench concluded that the FWC's decision was legally sound and dismissed the appeal. The court found that the dismissal was not unfair, and the appeal was accordingly refused.

Orders