Bobrenitsky v Sydney Trains [2023] FCAFC 96

Bobrenitsky v Sydney Trains [2023] FCAFC 96

The Full Bench of the Fair Work Commission fell into jurisdictional error by failing to consider, or considering in a legally unreasonable way, mandatory factors under s 387(b)-(c) of the Fair Work Act 2009 (Cth) relating to whether Mr Bobrenitsky was notified of and given a chance to respond to all reasons for his dismissal, particularly regarding conduct relied upon for the first time on appeal. The Full Bench's redetermination of the unfair dismissal application was not undertaken according to law and must be quashed.

Parties
Applicant: Andrew Bobrenitsky; First Respondent: Sydney Trains; Second Respondent: Fair Work Commission
Jurisdiction
Australia
Judgment Date
23 June 2023
Procedural Posture
Judicial Review / Appeal From Decision of Full Bench of the Fair Work Commission
Outcome
Application allowed; decision set aside and remitted for rehearing.
Legal Topics
Unfair Dismissal, Judicial Review, Procedural Fairness, Jurisdictional Error, Fair Work Act 2009 (cth), Appellate Function
Industrial Law Employment Law Unfair Dismissal Judicial Review Procedural Fairness Jurisdictional Error Fair Work Act 2009 (cth) Appellate Function

Case Brief

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Parties

Andrew Bobrenitsky

Applicant

Sydney Trains

First Respondent

Fair Work Commission

Second Respondent

Procedural Posture

Judicial Review / Appeal From Decision of Full Bench of the Fair Work Commission

Legal Issues

  1. 1 Whether the Full Bench of the Fair Work Commission committed jurisdictional error in its appellate function
  2. 2 Whether the applicant was denied procedural fairness
  3. 3 Whether consideration of mandatory factors under s 387 of the FW Act was omitted

Ratio Decidendi

The Full Bench of the Fair Work Commission fell into jurisdictional error by failing to consider, or considering in a legally unreasonable way, mandatory factors under s 387(b)-(c) of the Fair Work Act 2009 (Cth) relating to whether Mr Bobrenitsky was notified of and given a chance to respond to all reasons for his dismissal, particularly regarding conduct relied upon for the first time on appeal. The Full Bench's redetermination of the unfair dismissal application was not undertaken according to law and must be quashed.

Court Disposition

Application allowed; decision set aside and remitted for rehearing.

Orders

  • There be judgment for the applicant.
  • A writ of certiorari issue, removing into this court and quashing the decision of the Fair Work Commission (and the orders pronounced in consequence of it) made on 16 March 2022 in matter C2021/4195.