Pearljit Singh v Metro T/A Metro Trains Melbourne (C2015/3464)  FWCFB 6711. HAMILTON, DP, GOOLEY, DP, ROE, C.
It appears to be a rare occurrence these days that an appeal is allowed by the FWC. It is for this reason that I bring this Full bench decision to your attention.
The summary of this this matter is that Ms Singh, a PSO for Metro Trains, was dismissed for “interfering with a customer’s two mobile phones. That is, they went missing from the customer’s handbag and were later found in the toilets, minus their SIM cards.
A full and thorough investigation was undertaken by Metro, with the VP fundamentally agreeing with the findings of the investigation, thus determining that Ms Singh was fairly dismissed.
The FB stated:
- In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test as ‘a stringent one’. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.
- Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
- , the FB found that the investigation by Metro was flawed, and so then was the VP’s decision, concluding that:
“In our view this provides a basis for grant of permission to appeal. We are satisfied that it is in the public interest to grant permission to appeal. It is central to the system of justice that adequate reasons be provided and that findings be made on questions of fact and law in s.387 matters before the Commission.
“We decided to allow the appeal, to quash the decision and order, and to order that the matter be remitted to Commissioner Roe to rehear. [I left this bit in, because of the use of the word “quash”.]
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