Leave to Appeal against employee reinstatement rejected
One of New South Wales most prominent public sector employers has failed to convince a Full Bench of the Fair Work Commission (FWC) that they should be granted leave to appeal the decision to reinstate a former employee dismissed for engaging in inappropriate behaviour during a period of annual leave. The Full Bench unanimously agreed that the Commissioner had made a sound determination based upon the evidence presented and carefully considered all issues presented in the case.
The long-term employee had been dismissed by Sydney Trains (the employer) in March 2020 following a series of incidents that arose while on a skiing holiday from NSW to Victoria, using train travel. The allegations mainly centred around access to alcohol aboard the train, resulting in inappropriate and disrespectful behaviour towards several train staff and a fellow passenger. Further, during a subsequent investigation interview, the employee’s behaviour was considered aggressive and formed part of the reasoning for his dismissal.
The Full Bench comprising Vice President Catanzariti, and Deputy Presidents’ Masson and Millhouse, dismissed all grounds of appeal raised by the employer against the initial decision of Commissioner McKenna. In doing so, they highlighted a range of deficiencies displayed by the employer during the investigation process.
Some of the deficiencies included:
Incorrectly determining the alleged behaviour could amount to breaches of the employer’s Code of Conduct (which Commissioner McKenna ruled did apply);
Not objectively assessing the evidence and witness statements obtained during the investigation;
Denying procedural fairness by not giving the employee adequate notice to prepare for the initial investigation interview and not allowing the employee to consult with his union representative adequately;
Regarding the employee’s behaviour at an interview to be aggressive, despite it being similar to the behaviour of one of the interviewers during the same interview; and
Not following all steps detailed in their own Discipline Procedure.
In conclusion, the Full Bench rejected the complaint of Sydney Trains’ that Commissioner McKenna had failed to consider its case. As they summarised in their decision,
“The Commissioner conducted this analysis in a comprehensive manner. The Commissioner considered each allegation, made findings of which a number were adverse to (the employee) and concluded that the conduct whether considered singularly or collectively did not establish a valid reason for (his) dismissal”.
The Full Bench was not satisfied that it would be in the public interest to grant the employer permission to appeal. The decision, therefore, to reinstate the employee and restore lost pay stands.
For queries about misconduct investigations, terminations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.