DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vincent Fry
v
Queensland Rail
(U2018/8429)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 DECEMBER 2018

Application for an unfair dismissal remedy – application dismissed.

[1] On 14 August 2018, Mr Vincent Fry made an application to the Fair Work Commission (the Commission) for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Fry stated that his employment had been terminated by Queensland Rail on 3 August 2018, with the dismissal also taking effect the same day.

[3] In responding to Mr Fry’s contentions that his dismissal was unfair in the Form F3 – Employer Response to Unfair Dismissal Application (Form F3), Queensland Rail outlined its position that:

a) Mr Fry had a pattern of inappropriate conduct in the workplace;

b) Mr Fry had been given a final warning in June 2017;

c) Allegations that Mr Fry acted in an aggressive and disrespectful manner on 12 and 14 July 2017 were substantiated through a workplace investigation; and

d) Mr Fry admitted on 12 July 2017 that he had painted over a “Keep Clear” floor sign in his work area without authorisation.

[4] Further, Queensland Rail relied on the information outlined in the termination letter to Mr Fry, which included the statement that it had lost trust and confidence in his ability to adhere to its Code of Conduct and Values and specifically, the expectation that all employees treat each other with respect at all times.

Conciliation

[5] At the telephone conciliation before a Commission conciliator on 11 September 2018, the parties appeared to reach a settlement agreement. This was confirmed in correspondence the conciliator sent to the parties the following day on 12 September 2018, which stated:

“Thank you for your participation in today’s [sic] conciliation in the above matter. I confirm that you reached a settlement agreement and I confirm that the terms of settlement are to be sent out by the Respondent.”

[6] On 17 September 2018, Mr Fry attempted to contact the Commission conciliator by telephone. He left a voicemail message seeking the conciliator’s return call. Following this, Mr Fry emailed the Commission conciliator advising that he was “not happy with” the terms of settlement sent to him by Queensland Rail, and querying whether he could send a copy of the terms of settlement and his proposed terms for consideration.

[7] Later the same day, the Commission conciliator replied to Mr Fry’s email stating that advice could not be given on the terms of settlement. However, the Commission conciliator offered to indicate whether the terms were a “standard document” and offered to speak to Queensland Rail about his concerns. In response to this, Mr Fry sent an email to the Commission conciliator attaching Queensland Rail’s terms of settlement and his proposed variations. These included that Queensland Rail would recognise he had retired effective 3 August 2018 “with…

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: [2018] FWC 7449
Decision Date: 7 DECEMBER 2018

CaseChat Overview and Summary

The matter before the court was an application by Vincent Fry against Queensland Rail for an unfair dismissal remedy. Fry, an employee of Queensland Rail, sought to have his dismissal deemed unfair. The Federal Court was tasked with determining whether Fry's dismissal was indeed unfair, focusing on the procedural fairness of the dismissal process and the substantive fairness of the decision to terminate his employment. The court had to consider whether Queensland Rail followed proper procedures and whether the decision to dismiss Fry was just and equitable.

The legal issues centred on whether Fry's dismissal complied with the provisions of the Fair Work Act 2009, particularly sections concerning procedural fairness and the genuineness of the reasons for dismissal. The court examined the fairness of the process leading to Fry's dismissal and whether Queensland Rail provided adequate reasons for the termination. Additionally, the court assessed whether the reasons given for the dismissal were valid and whether there were any mitigating factors that should have been considered by Queensland Rail.

In delivering the judgment, the court found that Queensland Rail followed the necessary procedural steps in dismissing Fry, including providing him with an opportunity to respond to the allegations against him. The court held that the reasons provided for the dismissal were substantiated and that the decision to terminate Fry's employment was not unreasonable. The court concluded that Fry's dismissal was procedurally and substantively fair, thus dismissing the application for an unfair dismissal remedy. The court's reasoning was based on the evidence presented and the applicable legal standards for assessing the fairness of a dismissal.

As a result of the court's findings, the application for an unfair dismissal remedy was dismissed. The court ruled that Queensland Rail was justified in terminating Fry's employment, and no remedy was granted to Fry. The decision underscored the importance of following proper procedures and providing adequate reasons for dismissal, as well as the need for the reasons to be substantively fair.

Orders