Australia, Fair Work Commission, 28 December 2022, Ranjiv Pentiah v Sydney Trains [2022] FWC 2921
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Instance
Area
Further areas addressed
- Non-discrimination
- Healthcare management (Covid related, excluding vaccination)
- Use of protection devices
Outcome of the decision
Link to the full text of the decision
General Summary
Applicant claimed he had been unfairly dismissed pursuant to section 394 Fair Work Act 2009 (Cth). The Applicant had been dismissed for numerous performance and behaviour issues, including a failure to take appropriate safety measures against COVID-19 transmission when dealing with a passenger. The Applicant sought to be reinstated to his employment. The Application was dismissed.
Facts of the case
The Applicant worked for Sydney Trains as a customer relations attendant. The Applicant was a Health and Safety representative and a Union Delegate. The Applicant had a history of disciplinary issues with his employer dating back to 2017. The reasons for the Applicant’s dismissal were grouped as 1) “sending inappropriate emails”; 2) failing to comply with a supervisor’s instruction and 3) in incidents occurring on 28 July 2021, “acting inappropriately towards a customer and co-workers,” and “failing to take appropriate Covid safety precautions with the customer”. On that day, which was during a COVID-19 lockdown, the Applicant attempted to detain a disabled passenger and their carer for breaching lockdown, despite the passenger being permitted to travel as he was on his way to a vaccination appointment. During this attempt, the Applicant inappropriately spoke to the disabled passenger with his face mask lowered, and without maintaining a social distance of 1.5 metres.
The Tribunal held that the Applicant’s actions fell far short of the employer’s Code of Conduct and concluded that the reasons for dismissal were “...sound, defensible or well founded”. The Applicant claimed he was being bullied and discriminated against whenever he raised what he felt to be legitimate safety concerns with his superiors. The Tribunal found that the dismissal was not harsh, unjust nor unreasonable and that the employer had gone to “extraordinary lengths” in their attempts to have the Applicant understand what was considered appropriate workplace conduct.
The Application was dismissed.
Type of measure challenged
- Local government measure
- National government measure
- Federal government measure
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Applicant’s dismissal would be unjust under the Fair Work Act 2009 if it was ‘harsh, just or unreasonable’. The Commission reviewed the detailed and lengthy disciplinary history of the Applicant. The reasons for the Applicant’s dismissal were grouped as 1) “sending inappropriate emails”; 2) failing to comply with a supervisor’s instruction and 3) in incidents occurring on 28 July 2021, “acting inappropriately towards a customer and co-workers,” and “failing to take appropriate Covid safety precautions with the customer”.
The Commission found that there was sufficient evidence for each of those three actions or groups of actions to constitute a valid reason for dismissal.
The Commission found that the Respondent had notified the Applicant of the reason for his dismissal, and had given him an opportunity to respond to the allegations, and allowed him to have a support person at relevant times.
For these reasons, the dismissal was not ‘harsh, just or unreasonable’, and was therefore not unfair dismissal.
Conclusions of the deciding body
Application was dismissed.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Other notes
On "type of court": The Fair Work Commission is a Tribunal established by the Fair Work Act 2009 (Cth). It is not a court but a national workplace relations tribunal and registered organisations regulator.
