The Case

Brelin v Sydney Trains (2021)

Mr Brelin was employed as a full-time plant mechanic for Sydney Trains. Mr Brelin caused $35,000 worth of damage to a work vehicle and injured a work colleague when he reversed into a power pole.

Sydney Trains investigated. It concluded that the incident was the result of human error caused by poor visibility and required Mr Brelin to attend a driver training course. It then closed the investigation. However, 8 months’ later, Sydney Trains reopened the investigation, alleging that the incident was caused by Mr Brelin’s work colleague “egging him on”.

Sydney Trains concluded Mr Brelin had provided misleading information during the first investigation and had breached Sydney Trains’ Code of Conduct. As such, Sydney Trains terminated Mr Brelin’s employment.

Mr Brelin lodged an application for unfair dismissal with the Fair Work Commission (FWC).

The Verdict

The FWC found that while misconduct had occurred, dismissal was not the appropriate outcome. The FWC found that:

• a second investigation was appropriate given the new information that had become available;
• Mr Brelin had been inattentive while operating the work vehicle, which resulted in him reversing into the power pole, causing damage and injuring his colleague;
• there was not a significant difference between the response Mr Brelin provided to Sydney Trains during the first and second investigations, and Sydney Trains had initially found the incident was caused by human error;
• there was not a breakdown in trust and confidence between Sydney Trains and Mr Brelin, as Mr Brelin had worked for 12 months between the first investigation and the findings of the second investigation; and
• reinstatement was the appropriate remedy.

The Lessons

Reinstatement is a possible remedy when an application for unfair dismissal is made. Not every unfair dismissal claim that is found to be unfair will result in the payment of compensation alone. It is important to consider when misconduct occurs, whether employment termination is reasonable in the circumstances or whether other disciplinary measures should be taken.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.