13 July 2023
16 min read
#Government, #Workplace Relations & Safety
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The recent decision of Bobrenitsky v Sydney Trains [2023] FCAFC 96 (FC decision) has again highlighted that the areas of industrial and workplace law are highly technical. In the FC decision, the Full Court of the Federal Court of Australia reviewed an earlier appeal decision made by the Full Bench of the Fair Work Commission (FWC) regarding an unfair dismissal application brought by a former employer of Sydney Trains, Mr Bobrenitsky (FWC decision).
In the case of the unfair dismissal regime under the Fair Work Act 2009 (Cth) (FW Act), the overarching legal tests involve assessment on the facts as well as mandatory considerations that the FWC must consider when making any decision.
The FC decision not only highlights the need to ensure the FWC addresses all the mandatory criteria when making its decision but also provides relevant lessons for employers to consider when dealing with dismissals.
On Sunday, 16 August 2020, Mr Bobrenitsky was arrested on suspicion of impaired driving along the Great Western Highway in Warrimoo, NSW. The results of a breath analysis test showed that he had a blood alcohol content of more than four times the limit prescribed in NSW. At the time, Mr Bobrenitsky was employed by Sydney Trains as a train driver but was not working on the day of the incident.
Mr Bobrenitsky attended work the following morning (17 August 2020) and drove a train. It was not until three days later that he submitted a written notification advising Sydney Trains that he had been charged with a high-range prescribed concentration of alcohol (PCA) offence.
On the following Monday, 24 August 2020, Sydney Trains suspended Mr Bobrenitsky from his duty and commenced a disciplinary process, which later resulted in Mr Bobrenitsky being dismissed from his employment. During the disciplinary process, Sydney Trains alleged that Mr Bobrenitsky breached the “Transport for NSW Code of Conduct”, which was applicable to Mr Bobrenitsky at the time because he had been “…charged by the NSW Police force (NSWPF) with a high-range Prescribed Content of Alcohol (PCA) criminal offence”.
In a later communication from Sydney Trains to Mr Bobrenitsky on 24 November 2020, the same conduct was described as constituting serious misconduct within the meaning of the applicable enterprise agreement because he had been charged and subsequently convicted of a high-range PCA criminal offence. Mr Bobrenitsky was subsequently dismissed on 13 January 2021 with his employment being ultimately terminated on 18 February 2021 after a review of the decision to terminate was requested by Mr Bobrenitsky.
As the matter was heard by the FWC, Sydney Trains also contended that there was a valid reason for dismissal because on the morning of 17 August 2020, Mr Bobrenitsky had “failed to take steps to ensure that he could operate [a] train safely”. This was in addition to the reasons put to Mr Bobrenitsky during the disciplinary process which led to his dismissal. In other words, the reasons for dismissal which Sydney Trains put to Mr Bobrenitsky during the disciplinary process were based on Mr Bobrenitsky’s conduct on 16 August 2020, whereas the valid reason contended before the FWC included Mr Bobrenitsky’s conduct on 17 August 2020.
Firstly, the FWC decision provides useful insight on how conduct occurring outside of work hours could be a valid reason for dismissal because the Full Bench of the FWC held that Mr Bobrenitsky’s conduct on 16 August 2020 was sufficiently connected to his employment as to warrant his dismissal.
Secondly, in the FC decision, the Full Court reiterated that in order to be satisfied that there was a valid reason, the FWC is not constrained by the matters that the employer puts forward to defend the dismissal but rather the FWC must determine whether in all the circumstances, viewed objectively, there was a valid reason for dismissal, even if it was not the reason put forward by the employer. As such, the Full Bench of the FWC could find that there was a valid reason for dismissal based on Mr Bobrenitsky’s conduct on 17 August 2020.
In the course of the Full Bench of the FWC re-determining the unfair dismissal application and finding that there was a valid reason for dismissal, the Full Bench did not consider, or did not appear to have considered, the fact that the valid reason the Full Bench relied upon (i.e. Mr Bobrenitsky’s conduct on 17 August 2020) was not put to Mr Bobrenitsky during the disciplinary process.
In that context, the Full Court of the Federal Court of Australia examined section 387 of the FW Act, being the criteria for considering harshness etc., and determined that each of its criteria, including the requirement that the employee be notified of a valid reason and given an opportunity to respond, were mandatory for the Full Bench to consider when making its decision on appeal which the Full Bench had failed to do so. This led to an error in the decision-making process that invalidated the decision.
As a result, the Full Court could not be satisfied that if the Full Bench had considered the “mandatory considerations” it would not have made a different decision. It held that notwithstanding “…the existence here of the valid reason upon which the full bench accepted that Mr Bobrenitsky’s dismissal was warranted, it is at least conceivable that the FWC might have considered that the dismissal was harsh, unjust or unreasonable for one of procedural fairness.”
Accordingly, the FWC decision was quashed and the matter was remitted for a rehearing.
This is a long continuing matter that displays the complexity of determining the validity of a dismissal. The FC decision highlights the need for employers to assess all of the factual material early, and often in compressed time conditions, to articulate the reason or reasons for why the employer is considering taking disciplinary action, including dismissal. This is not an easy task for employers and requires discipline to ‘stand back’ from the facts and carefully consider how on their own or in totality they are contrary to the position or the standards of conduct required by the employer.
The series of decisions leading to this outcome also features the nature of the unfair dismissal jurisdiction which contains broad concepts for the FWC to apply when assessing the facts and any technical and mandatory considerations. It is also important for employers to assist the FWC in ensuring they identify and consider the mandatory factors required, while noting that they are not determinative in and of themselves of the result.
More generally, this series of decisions leading to the FC decision deals with some of the complexities that arise when out of work conduct is relied upon as a reason for dismissal. The FWC decision is a useful point of reference for this issue.
This case is relevant for NSW government agencies who have opted for the federal system (i.e. the FW Act) rather than the state system, and may also be useful for those dealing with unfair dismissal claims as there are similar mandatory criteria under the Industrial Relations Act 1996 (which is applicable to a majority of the NSW Government), including the requirement to provide a reason for the dismissal and an opportunity to respond.
If you have any questions regarding this article, please get in touch with a member of our Workplace Relations & Safety team below.
Authors: Stephen Trew & Jamie Kim
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AAT Bulletin Issue No.11/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions Cases (3 July 2023). Read more here.
Shaw v Woollahra Municipal Council [2023] NSWLEC 1358
MODIFICATION APPLICATION – building works undertaken without consent – application for building information certificate – modification of consent.
Conveyancing Act 1919; Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Woollahra Local Environmental Plan 2014.
Styles v Wollondilly Shire Council [2023] NSWCATAD 176
ADMINISTRATIVE LAW – Government Information (Public Access) Act – decision to impose a processing charge – whether information is personal information.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009.
Smith v Eurobodalla Shire Council [2023] NSWLEC 1345
DEVELOPMENT APPLICATION – single dwelling house – flood risk mitigated – site suitability – lot consolidation not reasonable.
Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Eurobodalla Local Environmental Plan 2012; Land and Environment Court Act 1979; Marine Estate Management Act 2014; Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021; Standard Instrument (Local Environmental Plans) Order 2006; State Environment Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Resilience and Hazards) 2021; State Environmental Planning Policy Amendment (Flood Planning) 2021.
Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668
TAXES AND DUTIES – land tax – appeals – appeal against land tax assessment notice – exemption under Land Tax Management Act 1956 (NSW) – plaintiff operates approved education and care service – land divided into two parcels of the one registered lot – childcare centre situated on one parcel of land and septic system situated on second parcel of land – whether second parcel of land containing ancillary services necessary for the operation of the land being exempted is also entitled to land tax exemption – whether commissioner entitled to assess individual parcels as designated by Valuer-General – whether septic system was the sole use of the parcel of land is a question of fact – question of fact not appellable – appeal dismissed .
STATUTORY INTERPRETATION – definitions – Interpretation Act 1987 (NSW) s 21 – “land” – whether same word has the same meaning in different parts of an Act.
APPEALS – right of appeal – scope of right – error of law – leave to appeal – principles for grant of leave.
Civil and Administrative Tribunal Act 2013 (NSW); Judiciary Act 1903 (Cth); Interpretation Act 1987 (NSW); Land Tax Management Act 1956 (NSW); Real Property Act 1900 (NSW); Strata Schemes Development Act 2015 (NSW); Taxation Administration Act 1996 (NSW); Valuation of Land Act 1916 (NSW).
Ballina Shire Council v Moore [2023] NSWCA 155
TORTS – negligence – breach of duty – public authority – responsibility for care and management of shared pathway – identifying risk of harm – whether risk not insignificant – duty to pedestrians and cyclists – fall by cyclist in avoiding bollard – precaution of removing remaining bollard of pair – purpose of bollard to create obstacle – whether single bollard had social utility – burden of precautions to avoid similar risks – whether reasonable authority would have taken precaution of removing bollard.
Civil Liability Act 2002 (NSW).
Angolet Pty Ltd v Central Coast Council [2023] NSWLEC 1346
MODIFICATION APPLICATION – additional floor to approved shop top housing development – the development as modified is substantially the same as the development approved – the view impacts arising from the modification are unacceptable – application should be refused on merit – appeal dismissed.
Environmental Planning and Assessment Act 1979; Central Coast Local Environmental Plan 2022; Gosford Local Environmental Plan 2014; Land and Environment Court Act 1979.
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DEVELOPMENT APPLICATION – finalising conditions of consent following directions in primary judgement – groundwater contamination mitigation details – permeable reactive barrier – numerous disputed conditions.
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NSW Legislation
Regulations and other miscellaneous instruments
Justice Legislation Amendment (Fees) Regulation 2023 – published LW 7 July 2023
Statutory and Other Offices Remuneration (Executive Office Holders and Senior Executives) Regulation 2023 – published LW 3 July 2023
Water Management (Application of Act to Bega River Area Coastal Floodplain Alluvial Groundwater Source) Proclamation 2023 – published LW 4 July 2023
Water Management (Application of Act to Greater Metropolitan Region Groundwater Sources) Proclamation 2023 – published LW 4 July 2023
Water Management (Application of Act to Towamba River Coastal Floodplain Alluvial Groundwater Source) Proclamation 2023 – published LW 4 July 2023
Water Management (Application of Act to Tweed River Area Coastal Floodplain Alluvial Groundwater Source) Proclamation 2023 – published LW 4 July 2023
Environmental planning instruments
Camden Local Environmental Plan 2010 (Amendment No 52) – published LW 7 July 2023
Canterbury-Bankstown Local Environmental Plan 2023 (Map Amendment No 1) – published LW 7 July 2023
Hawkesbury Local Environmental Plan 2012 (Map Amendment No 4) – published LW 7 July 2023
Lismore Local Environmental Plan 2012 (Map Amendment No 6) – published LW 7 July 2023
Maitland Local Environmental Plan 2011 (Amendment No 35) – published LW 7 July 2023
Orange Local Environmental Plan 2011 (Amendment No 35) – published LW 7 July 2023
Orange Local Environmental Plan 2011 (Map Amendment No 6) – published LW 7 July 2023
Penrith Local Environmental Plan 2010 (Map Amendment No 3) – published LW 7 July 2023
Wingecarribee Local Environmental Plan 2010 (Map Amendment No 7) – published LW 7 July 2023
Wollondilly Local Environmental Plan 2011 (Amendment No 44) – published LW 7 July 2023
Woollahra Local Environmental Plan 2014 (Amendment No 31) – published LW 7 July 2023
Commonwealth
Act compilation
National Health Act 1953 10/07/2023 – Act No. 95 of 1953 as amended
Archives Act 1983 10/07/2023 – Act No. 79 of 1983 as amended
Australian Border Force Act 2015 10/07/2023 – Act No. 40 of 2015 as amended
Student Assistance Act 1973 10/07/2023 – Act No. 155 of 1973 as amended
Fringe Benefits Tax Assessment Act 1986 10/07/2023 – Act No. 39 of 1986 as amended
Australian Crime Commission Act 2002 8/07/2023 – Act No. 41 of 1984 as amended
Veterans' Entitlements Act 1986 8/07/2023 – Act No. 27 of 1986 as amended
Administrative Appeals Tribunal Act 1975 8/07/2023 – Act No. 91 of 1975 as amended
Telecommunications (Interception and Access) Act 1979 8/07/2023 – Act No. 114 of 1979 as amended
Foreign Acquisitions and Takeovers Act 1975 8/07/2023 – Act No. 92 of 1975 as amended
Higher Education Support Act 2003 8/07/2023 – Act No. 149 of 2003 as amended
National Anti-Corruption Commission Act 2022 8/07/2023 – Act No. 88 of 2022 as amended
Privacy Act 1988 8/07/2023 – Act No. 119 of 1988 as amended
Australian Securities and Investments Commission Act 2001 8/07/2023 – Act No. 51 of 2001 as amended
Australian Research Council Act 2001 8/07/2023 – Act No. 8 of 2001 as amended
Defence Service Homes Act 1918 8/07/2023 – Act No. 43 of 1918 as amended
Military Rehabilitation and Compensation Act 2004 8/07/2023 – Act No. 51 of 2004 as amended
Administrative Decisions (Judicial Review) Act 1977 8/07/2023 – Act No. 59 of 1977 as amended
Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 7/07/2023 – Act No. 7 of 1989 as amended
Age Discrimination Act 2004 7/07/2023 – Act No. 68 of 2004 as amended
Criminal Code Act 1995 6/07/2023 – Act No. 12 of 1995 as amended
National Consumer Credit Protection Act 2009 6/07/2023 – Act No. 134 of 2009 as amended
Migration Act 1958 6/07/2023 – Act No. 62 of 1958 as amended
Taxation Administration Act 1953 6/07/2023 – Act No. 11 of 1953 as amended
Surveillance Devices Act 2004 6/07/2023 – Act No. 152 of 2004 as amended
Medicare Levy Act 1986 5/07/2023 – Act No. 110 of 1986 as amended
Income Tax Assessment Act 1997 4/07/2023 – Act No. 38 of 1997 as amended
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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