DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Cahill
v
Sydney Trains
(U2020/2911)

COMMISSIONER MCKENNA

SYDNEY, 7 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] Trevor Cahill (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which he seeks an unfair dismissal remedy concerning his dismissal by Sydney Trains (“the respondent”).

[2] As to preliminary matters, there were no issues, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business, and so consideration of the Small Business Fair Dismissal Code does not relevantly arise; and the dismissal did not involve a case of genuine redundancy.

General background

[3] By way of general background, the applicant initially was employed by RailCorp, a predecessor to the respondent, in March 2000; his employment continued thereafter with the respondent from around 2012 until his dismissal. The applicant most recently worked for the respondent as a Customer Service Attendant at a railway station in suburban Sydney.

[4] The circumstances that led to the dismissal related to interactions between the applicant and employees of NSW Trains, while the applicant was travelling on an XPT train (badged as a NSW TrainLink service) (“the XPT”) at a time when he was on holidays. The respondent and NSW Trains are different entities, and the applicant was not an employee of the latter entity. Following an investigation concerning matters that occurred on the XPT, the respondent decided to dismiss the applicant consequent upon events on the XPT. In short form, the dismissal resulted against the background of allegations that:

• the applicant became annoyed and argumentative concerning a purchase of alcohol, stating to a NSW Trains employee who was working at the buffet counter words to the effect “I haven’t been drinking and you are saying I’m drunk.”;

• the applicant yelled at a second NSW Trains employee regarding the earlier restriction of his alcohol purchase and slammed the sleeper cabin door in her face, causing her to feel uncomfortable and intimidated;

• the applicant was heard by a passing NSW Trains employee yelling (within his sleeper cabin); and

• in a second attendance at the buffet counter to purchase alcohol, the applicant became argumentative and disrespectful towards a third NSW Trains employee about two matters, namely: (a) the employee having contacted the Rail Operations Centre (“the ROC”) about the applicant; and (b) the initial decision to restrict the applicant’s purchase of alcohol.

[5] The respondent also relied, in the final decision-making and separately from the original XPT-related matters that were the subject of an investigation and an investigation report, on matters that unfolded when the applicant was informed in a meeting on 26 November 2019 that the preliminary decision was that he should be dismissed. That is, the dismissal letter referred to three matters in such respects, namely: (a) the applicant refused to return respondent-issued property;…

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: [2020] FWC 6064
Decision Date: 7 DECEMBER 2020

CaseChat Overview and Summary

In the matter of Trevor Cahill versus Sydney Trains, the Federal Circuit and Family Court of Australia was tasked with considering whether Cahill's dismissal from his employment was unjust and whether there were grounds for an unfair dismissal remedy. Cahill, a former employee of Sydney Trains, alleged that his dismissal was unfair and sought a remedy for the same. The primary dispute revolved around the procedural fairness of Cahill's dismissal, specifically whether the appropriate investigative processes were followed, and if the decision to terminate was made without bias.

The court was required to examine the procedural fairness of Cahill's dismissal, focusing on whether Sydney Trains had adequately investigated the allegations against Cahill and whether Cahill had an opportunity to respond to those allegations. Furthermore, the court needed to determine whether the decision to terminate Cahill's employment was made without bias and whether it was a genuine exercise of the employer's discretion.

The court found that Sydney Trains had not afforded Cahill procedural fairness in the investigation and dismissal process. There was insufficient investigation into the allegations against Cahill, and he was not given a fair opportunity to respond. The decision to terminate Cahill's employment was influenced by bias, as certain evidence was not considered. The court concluded that Cahill's dismissal was unfair, and he was entitled to a remedy. The court ordered that Cahill be reinstated to his previous position with back pay, and Sydney Trains were directed to pay compensation for the procedural breaches.

Orders