Termination of long-term employee ruled harsh and unreasonable

Termination of long-term employee ruled harsh and unreasonable

The Fair Work Commission has determined that the dismissal of a NSW Trains employee with 22 years’ service and an unblemished record was both harsh and unreasonable and has ordered his reinstatement. The Commission was critical of the length of time the investigation took, the misinterpretation of some of the employee’s behaviour, and the failure to consider the employee’s individual circumstances and extensive remorse and regret displayed during the investigation.

The investigation was spurred by two incidents during a four-minute period at a Central NSW train station on 8 October 2020. In the first incident, the employee allegedly told his supervisor to `get f**ked’. Shortly thereafter, when the supervisor tried to discuss the incident, the employee said, “I’m trying hard not to punch you in the face; you need to step away from me”.

Immediately following the exchange, the employee tried to apologise to the supervisor. He was suspended on pay the same day until his termination following the completion of a four-month investigation. Both employees had known each other for over 15 years with no known previous issues between them.

Deputy President Michael Easton acknowledged that the employee’s initial comment was unacceptable in any circumstance.

Critically, however, he accepted the employee’s argument that he had not verbally or physically threatened the supervisor, which was supported by CCTV footage reviewed during the proceedings. As the Deputy President noted, the footage indicates the employee “briefly engages again with Mr French but does not at any time move towards Mr French in a way that could be interpreted as hostile or a threat”. Further, he determined that the employee had made this comment while walking away in an attempt to de-escalate the situation.

The Deputy President noted the extreme remorse, regret, and shame the employee displayed throughout the investigation and acknowledged his character. He noted that the employee “had an exemplary disciplinary record. He was the sole Health and Safety Representative for Lithgow Deputy Guards. He was a Peer Volunteer for the Blue Mountains area, and 36 of his colleagues provided personal references in the proceedings”.

There was also evidence presented that the employee had been suffering from mental health issues linked to concerns he had raised about the safety of new trains being implemented in the network. His employer acknowledged there were signs the employee was not coping in the weeks and months leading up to the incident of 8 October 2020 and had actually referred him to their EAP.

In ruling the dismissal both harsh and unreasonable, the Deputy President noted, “NSW Trains’ response of suspending (the employee) and conducting a 4-month external investigation into a 4-minute incident, was grossly disproportionate…(he) was left languishing under suspension for several months and Mr French was completely unaware of (his) remorse and unconditional apology.

Consequently, he ordered the employee’s reinstatement.

SG v NSW Trains (U2021/2894) 27 September 2021

For questions about misconduct, investigations, natural justice, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

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.

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