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Sydney Trains Unfairly Dismissed Worker 12 Months After Misconduct

Sydney Trains unfairly dismissed worker 12 months after misconduct

The Fair Work Commission has found Sydney Trains unfairly dismissed a worker over an accident that happened 12 months previously.

The Commission found the employer had a valid reason for dismissal.

However, it also found it had been “grossly unfair” to revisit the matter and arrive at a different conclusion without any new evidence.

The case illustrates the perils of sacking a worker long after any misconduct has taken place.

The background

In August 2019, the plant mechanic had been working with an apprentice in the rail corridor at Wollongong Station.

The worker had driven down a dead-end road to access the worksite which left no room to make a three-point turn.

When the pair finished the job, the worker reversed towards the entrance.

A service box containing work tools affixed to the vehicle obstructed part of his rear vision.

The man reversed approximately 200 metres before colliding with a power pole.

After the crash, the worker immediately checked on the apprentice sitting in the passenger seat.

He then assessed the damage before reporting the incident to his team leader.

Sydney Trains conducted a workplace investigation and subsequently directed the worker to complete a driver training course, which he did.


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Sydney Trains unfairly dismissed worker

Eight month later, in April 2020, Sydney Trains told the worker its Workplace Conduct and Investigation Unit had commenced a new investigation.

It accused him of misconduct for causing the crash, which resulted in $35,000 damage and caused injury to the apprentice – who needed time off work.

It also accused him of providing false and misleading information during the initial investigation when he told his supervisors he had been travelling just 10km/hr when the crash happened.

Sydney Trains eventually sacked the worker in September 2020, telling him the allegations of misconduct had been substantiated.

‘Grossly unfair’

Deputy president Geoffrey Bull said Sydney Trains had a valid reason for dismissal at the time of accident, because the worker failed to demonstrate an appropriate level of driving diligence.

However, he also found it was “grossly unfair to revisit the event and arrive at a different outcome nearly 12 months later when essentially the same facts and circumstances relied upon to justify the applicant’s dismissal existed at the time of the event”.



Wrong call

Industrial advocate Miles Heffernan says employers often use long-past incidents to justify dismissal.

“It is bizarre in this case that Sydney Trains would reopen the investigation so long after the initial accident,” he said.

And then to come up with a different conclusion, especially considering they had no new evidence, is plainly unfair.

“I’m not sure what prompted them to revisit this particular incident, but it was definitely the wrong call.”

Deputy president Bull ordered Sydney Trains to reinstate the worker.

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