Case involves Sydney Trains' decision to dismiss driver due to drunk driving offence
In a recent decision, the Federal Court has underscored that a full bench of the Fair Work Commission (FWC) is obliged to consider whether an employer notified its employee of the reason for their dismissal or provided the employee with an opportunity to respond.
In Bobrenitsky v Sydney Trains [2023] FCAFC 96, Andrew Bobrenitsky was arrested for driving with a blood alcohol content of more than four times the limit prescribed in NSW. The police charged him with a high-range prescribed concentration of alcohol (PCA) offence. The following morning Bobrenitsky attended went to work as a train driver with Sydney Trains. Three days later, he submitted to Sydney Trains a written notification advising that he had been charged with a high-range PCA offence.
Following an investigation, Sydney Trains decided to terminate Bobrenitsky’s employment. Bobrenitsky applied with the Fair Work Commission (FWC), alleging that Sydney Trains had unfairly dismissed him.
Sydney Trains responded to Bobrenitsky’s unfair dismissal application, denying that the dismissal was harsh, unjust or unreasonable. Sydney Trains contended that Bobrenitsky’s “criminal behaviour gave rise to genuine and serious concern…that [he] was unable to perform his work safely.”
Bobrenitsky argued that his conduct was not sufficiently related to his work as a train driver to sound like a “valid reason” justifying his dismissal. He also asserted that, in any event, his dismissal was harsh and that a sanction short of dismissal would have been more appropriate.
The FWC did not accept that Sydney Trains had a “valid reason” to effect the dismissal and held, in any event, that the dismissal was relevantly harsh. A full bench of the FWC overturned the decision on appeal.
Bobrenitsky appealed the full-bench decision to the Federal Court. One of the grounds he raised was the allegation that the FWC full bench failed to consider matters it must take account of or acted in a manner amounting to legal unreasonableness.
The appeal court noted that under s. 387(b) and s. 387(c) of the Fair Work (FW) Act, the FWC must consider whether an employer notified its employee of the reason for their dismissal or provided the employee with an opportunity to respond.
Sydney Trains maintained that Bobrenitsky’s decision to drive his car while affected by alcohol and that he was charged with a high-range PCA offence sufficed to establish a valid reason for dismissal. The appeal court noted that Bobrentisky was notified of the reason for his dismissal and was given ample opportunity to respond to it. The single judge of the FWC accepted as much at first instance, and the full bench noted that those findings were “not disputed in the appeal.”
The appeal court noted that the fill bench did not explicitly reference the matters to which s. 387(b) and (c) of the FW Act required that FWC give consideration when determining whether Bobrenitsky’s dismissal was harsh, unjustified, or unreasonable. Instead, the court found that the full bench only gave an abstract reference to Bobrenitsky having been “afforded procedural fairness.”
The appeal court said it was apparent that the full bench did not consider what s. 387(b) and (c) of the FW Act required it to consider or do so in a legally unreasonable way.
The court emphasized that the full bench was obliged to consider the matters enumerated in s. 387. The court said it was apparent that the full bench did not consider those matters. The court also said it was “impossible to see” what evidential foundation the full bench had for concluding that procedural fairness had been afforded in connection with what it accepted to be the valid reason for Bobrenitsky’s dismissal.
The court explained that to be adequately satisfied that Bobrenitsky’s dismissal was not harsh, unjust or unreasonable, the full bench must consider the subject matters referred to in s 387(b) and (c). Furthermore, its consideration of them had to be grounded in evidence.
The court concluded that the full bench’s decision resulted from a jurisdictional error. The court remitted the matter to the FWC for rehearing according to law.
