Resources: Blog

Fair Work Commission orders the reinstatement of an employee who was unfairly dismissed following a second investigation into the same incident

Blog
|

Pedal to the metal

In unfair dismissal matters, reinstatement is the primary remedy and the Fair Work Commission (FWC) may not make an order for compensation unless it is satisfied that reinstatement is inappropriate.

In unfair dismissal matters, reinstatement is the primary remedy and the Fair Work Commission (FWC) may not make an order for compensation unless it is satisfied that reinstatement is inappropriate.

When considering whether reinstatement is appropriate, the FWC will have regard to a number of factors.

In the recent decision of Brelin v Sydney Trains [2021] FWC 1314, the FWC ordered the reinstatement of an employee due to a “grossly unfair” investigation process whereby an employer revisited an incident that had already been resolved but came to an entirely different conclusion, despite the facts and circumstances remaining essentially the same.

The employee was a full-time Plant Mechanic for Sydney Trains (the Employer).

In August 2019, the employee was reversing his work vehicle when he collided with a power pole. The vehicle sustained approximately $35,000.00 worth of damage and a colleague in the passenger seat was injured.

The Employer investigated the incident and concluded that the accident was due to ‘human error caused by poor visibility and breakdown in communication’ (the initial investigation). The employee was required to attend a driver training course and the investigation was deemed closed.

Eight months after the incident, the Employer notified the employee that its Workplace Conduct and Investigation Unit would be conducting a second investigation into the incident in light of new evidence which showed that his colleague had been “egging him on” at the time of the incident.

It was alleged that the employee had failed to take reasonable care of the health and safety of himself and his colleague and that during the initial investigation, the employee had provided false and/or misleading information about the circumstances of the incident.  

The second investigation found the allegations to be substantiated. The employee’s employment was subsequently terminated on the basis that he had engaged in conduct that breached his staff responsibilities and work health and safety obligations under the Employer’s Code of Conduct.

The employee subsequently lodged an application with the FWC alleging that his dismissal was unfair on the grounds that that the incident had already been resolved after the initial investigation.

The FWC stated that it was still “open and appropriate” for the Employer to commence a second investigation in light of new information that was not previously available.  

Turning then to whether there was a valid reason for dismissal, the FWC was satisfied that the employee had engaged in conduct which involved him talking to a colleague while reversing and hitting a power pole, causing significant damage to the vehicle and injury to his colleague.

The FWC stated that the conduct indicated a “level of inattention” and the employee did not demonstrate an appropriate level of driving diligence. Accordingly, the FWC was satisfied that this conduct was a valid reason for dismissal.

However, the FWC found that the facts and circumstances relied upon to justify his dismissal had not changed between the initial and the second investigation. The FWC stated that the new information that caused the Employer to conduct a second investigation did not influence its findings and that the Employer could have drawn the same conclusion from the initial investigation but instead held it to be a case of human error. It is for this reason that the FWC held that the dismissal was unfair, unjust, and unreasonable.

In considering the appropriate remedy, the FWC rejected that the Employer had loss trust and confidence in the employee. The FWC stated that the employee had remained employed for 12 months after the initial investigation and the employment relationship had not changed until the findings of the second investigation.

Given that the facts and circumstances remained the same between both investigations, the FWC did not believe that the employment relationship would be untenable and therefore ordered the reinstatement of the employee, with continuity of employment being maintained.  

Lessons for employers

Employers should not operate on the assumption that the only possible consequence of dismissing an employee is that they may be ordered to pay them compensation.

As seen in this decision, the FWC will have regard to a number of circumstances when considering whether reinstatement is an appropriate remedy, such as the nature of the employment relationship and any investigation process undertaken.  

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Dismissals for temporary illnesses under the FW Act

Red Light, Green Light

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury.

Read more...

Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

Read more...

Casual Terms Award Review 2021

NEWS UPDATE

In March 2021, the casual employment amendments to the Fair Work Act 2009 (Cth) (FW Act) introduced a new statutory definition of “casual employee” and an entitlement to casual conversion as one of the National Employment Standards (NES).

Read more...

Commission critical of employer’s entirely email-based disciplinary process

Words flying high

Communication between the employer and employees is essential for a good working relationship. Poor communication in the disciplinary process may lead to a deficiency in the process which renders the dismissal unfair.

Read more...

Dismissals for temporary illnesses under the FW Act

Red Light, Green Light

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury.

Read more...

Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.