Passenger Rail, Workforce, Certification & Training

Metro facing unfair dismissal claim

An unfair dismissal claim lodged by a former Metro Trains employee will go to arbitration after initial objections from the rail operator were dismissed by the Fair Work Commission.

Transcripts from the FWC show an October 14 decision from Commission deputy president Anne Gooley, relating to an unfair dismissal claim lodged against Metro Trains Melbourne by former employee Ulla Lonnqvist.

Both sides agree Lonnqvist’s original contract covered work from February 23, 2015 to March 2, 2016, but was extended to September 2, 2016 during that initial term.

Metro informed Lonnqvist her services were no longer required a month before the contract was due to end, on August 5, 2016. Metro said it would pay Lonnqvist in lieu of four weeks’ notice – i.e. it would pay her up to September 2 – but Lonnqvist claims she was not paid her entitlements on termination.

“On 12 August she received one week’s pay for work up to 5 August 2016,” the court documents state. “She also received a payment of $42.69.

“She did not receive any further payments until after she lodged her unfair dismissal claim on 25 August 2016.”

Metro Trains admitted that there had been mistakes made in relation to Lonnqvist’s payments, according to the transcript, but that was rectified after Lonnqvist raised the failure to pay her in lieu of notice in her unfair dismissal application.

“Lonnqvist also advised that while her superannuation was normally paid monthly and she had received a superannuation contribution in August based on the monies paid on 5 August 2016, no superannuation contribution had been paid on the further amounts she had been paid,” Deputy President Gooley further explained.

Metro Trains had objected to the unfair dismissal claim, saying as it had paid Lonnqvist in lieu of giving her four weeks’ notice on the job, it had fulfilled the contract.

Gooley dismissed this objection.

“Metro Trains submitted that Ms Lonnqvist could not bring an unfair dismissal claim because Metro Trains chose not to renew Ms Lonnqvist’s employment contract and elected to pay out the remainder of the contracted amount,” she said.

“In effect Metro Trains submitted that Ms Lonnqvist was not terminated at the initiative of the employer. Her employment came to an end at the time specified in the contract.

“Had Metro Trains either verbally or in writing simply advised Ms Lonnqvist that that her contract would not be renewed and that her employment would come to an end on 2 September 2016 but that she would not be required to attend work until that date, I would have found that the termination of employment was not at the employer’s initiative but arose through the effluxation of time.

“However, here Metro Trains intended bringing the contract to an end on 5 August 2016 and paying out the contract. As such, the termination was at the initiative of the employer.”