Bobrenitsky v Sydney Trains [2023] FCAFC 96

Federal Court of Australia

Bobrenitsky v Sydney Trains [2023] FCAFC 96 Review of: Application for judicial review of Sydney Trains v Bobrenitsky [2022] FWCFB 32

File number: NSD 311 of 2022

Judgment of: COLLIER, SNADEN AND GOODMAN JJ

Date of judgment: 23 June 2023

Catchwords: INDUSTRIAL LAW – judicial review of decision of a full bench of the Fair Work Commission ("FWC") –application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) ("FW Act") – where employee had been charged and convicted of a criminal offence – where conduct was committed out of work hours – where employee was employed as a train driver – whether employee's conduct was a valid reason for dismissal – where application allowed at first instance before single member of the FWC – where full bench of the FWC allowed appeal on various bases, including that the out-of-hours conduct gave rise to a valid reason for dismissal APPEAL AND NEW TRIAL – whether full bench misapprehended appellate function in making a finding of error with respect to whether dismissal was founded upon a valid reason – consideration of the nature of an appeal to a full bench of the FWC – whether full bench was confined to make findings on the basis of the employer's submissions – whether alleged error was one of jurisdiction – whether employee was denied procedural fairness – where full bench had not denied the employee the opportunity to be heard – whether full bench failed to consider employee's submissions as to harshness of dismissal – whether that error amounted to a constructive failure to exercise jurisdiction – whether full bench's finding took account of mandatory considerations – whether error was material – whether remittal to a differently-constituted full bench justified – appeal allowed