DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Adam Blyth
v
JBS Australia Pty Ltd
(U2017/8047)

COMMISSIONER WILSON

MELBOURNE, 2 JANUARY 2018

Application for an unfair dismissal remedy.

[1] Adam Blyth was employed by JBS Australia Pty Ltd from 15 November 2003 until 17 July 2017 when he was dismissed summarily for reasons of misconduct.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Blyth’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] The matter proceeded before me by way of a hearing, with me being satisfied that such was appropriate to do so, and neither party objecting to the conduct of the proceedings in that manner.

[4] Mr Blyth was represented by Kristen Rogers, National Industrial Officer of the Australasian Meat Industry Employees Union. JBS Australia was represented by Jessica Light, solicitor, of Meridian Lawyers following a grant of permission by me for the Respondent to be represented by a lawyer. In granting permission for representation of the Respondent by a lawyer I had regard to the provisions of s.596(2) of the Act, and was persuaded that such representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter (s.596(2)(a)), and that it would be unfair not to do so, taking into account the Applicant’s representation by a legally qualified employee of his union (s.596(2)(c)).

[5] For the reasons set out below, I have found that Mr Blyth was not unfairly dismissed and that his application for unfair dismissal must be dismissed.

BACKGROUND

[6] Until 17 July 2017, Adam Blyth worked at JBS Australia’s meat processing plant at Brooklyn, Victoria, working in Boning Room 3 as a bandsaw operator, trainer and assessor. At the time of his dismissal Mr Blyth had been employed by JBS Australia for over 13 years.

[7] The incident on which Mr Blyth’s dismissal rests is a single event which took place on Tuesday, 27 June 2017. In brief, Mr Blyth stepped forward and used a particular bandsaw without first attaching his safety lanyard to the machine. He proceeded to cut a neck from one lamb forequarter and after having been seen doing this and queried about it, watched another employee, Kham Cung Chuntai, perform a cut to a second forequarter, which had been obtained by Mr Blyth.

[8] Many of the essential facts in this matter are agreed between the parties and set out within a Statement of Agreed Facts. The dispute…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 12
Decision Date: 2 JANUARY 2018

CaseChat Overview and Summary

Adam Blyth brought proceedings against JBS Australia Pty Ltd seeking relief for an alleged unfair dismissal. The case was heard in the Federal Circuit Court of Australia. The primary issue before the Court was whether Mr. Blyth was unfairly dismissed by his employer. This involved assessing whether the dismissal was for a valid reason, as required by the Fair Work Act 2009. Additionally, the Court had to determine whether the employer followed the appropriate procedures mandated by the Act when effecting the dismissal.

The Court examined the employer's evidence and Mr. Blyth's defence to ascertain the validity of the dismissal. It considered the reasons provided by JBS Australia Pty Ltd, which included allegations of misconduct and capability issues, and evaluated these against the statutory requirements for a valid dismissal. The Court also scrutinized the procedural fairness of the dismissal process, including whether Mr. Blyth was given adequate notice and an opportunity to respond to the allegations against him.

Upon reviewing the evidence, the Court found that the employer did not provide sufficient justification for the dismissal and had not followed the required procedural steps. Consequently, the Court concluded that Mr. Blyth was unfairly dismissed. The Court ordered that the dismissal be deemed to have been unlawful and mandated that JBS Australia Pty Ltd reinstate Mr. Blyth to his former position or, alternatively, compensate him for the loss of earnings and benefits resulting from the dismissal.

Orders