Reinstatements are ordered!

In a recent decision of Breline v Sydney Trains [2021] FWC 1314, the Fair Work Commission ordered reinstatement of an employee due to an unfair process.  The employer revisited an incident that had already been resolved but came to a different conclusion despite the facts remaining the same.

The employee was reversing his work vehicle when he hit a power pole, which required around $35,000 .00 worth of damage.  The colleague in the passenger seat was injured.

The employer investigated the incident concluding ‘human error caused by poor visibility and breakdown in communication’.  Disciplinary action was taken, just not termination of employment.

However, 8 months after the incident and initial investigation the employer conducted a second investigation in light of new evidence where the colleague was ‘egging him on’ at the time of the incident.   It was then found the employee had failed to take reasonable care of the health and safety of himself and his colleague and the employee had provided false information about the incident.   The employee’s employment was then terminated.

An unfair dismissal claim was lodged, and it was found that the second investigation was valid based on new information and that the dismissal was also failed due to the level of inattention while driving.   However, the facts and circumstances relied upon to justify his dismissal had not changed between the first and second investigation as the new information did not influence its findings and for this reason the FWC held the dismissal was unfair, unjust and unreasonable.  As the facts and circumstances remained the same, ordered the reinstatement of the employee with continuity of employment being maintained.

Therefore, best to ensure incidents are thoroughly investigated and careful consideration given to any relevant disciplinary action – and reinstatement does occur, not just compensation.