Adrian Harrington v Coates Hire Operations Pty Limited

[2014] FWC 5940

[2014] FWC 5940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Harrington
v
Coates Hire Operations Pty Limited
(U2014/1213)

COMMISSIONER BLAIR MELBOURNE, 28 AUGUST 2014

Application for relief from unfair dismissal.

[1] This mater is an application made under s.394 of the Fair Work Act 2009 (the Act) by Mr Adrian Harrington (the Applicant) alleging that his termination was harsh, unjust and unreasonable. The respondent to the application is Coates Hire Operations Pty Ltd (the Respondent). This matter was conciliated on 27 May 2014 but was not settled.

[2] The matter was set down for arbitration hearing in Brisbane on 21 August 2014. After commencing the arbitration on transcript, the Commission went into conference and had a number of discussions between the Applicant’s and the Respondent’s representatives. Arising from those discussions, the Commission indicated that it was prepared to give its decision based on those discussions and upon the submissions and witness statements that had already been provided.

[3] The Commission gave its decision in transcript; however, due to a technical problem the decision was not recorded in transcript. Here now are the brief reasons for its decision issued at the hearing on 21 August 2014.

[4] The Applicant commenced employment with the Respondent at its Reedy Creek special branch as a truck driver on 20 January 2002. He was summarily dismissed for a serious safety breach on 26 March 2014. The reasons for his termination related to the collection of a portable toilet from Surfers Paradise, being part of the Gold Coast Light Rail Project. The reasons relating to his termination were the following:

● That the Applicant parked his truck across part of the tram way immediately under live power lines. On doing so this created a tram car, approximately 30 metres away, hooting its horn as the truck was parked across the tram lines.

● The Applicant proceeded to operate the crane mounted on his truck, pick up the toilet, place it on the truck and then move away.

[5] It was asserted, and the Commission accepted, that the overhead wires were live and the presence of the Applicant’s vehicle in such close proximity to the rails and the live wires was serious breach of the Respondent’s safety requirements.

[6] It was also asserted, and accepted by the Commission, that the Applicant in all such circumstances knew that the site could not be accessed unless a permit to work had been issued.

[7] It was also asserted that the hazard zone is clearly identified with blue and white tapes and/or signs posted indicating “commissioning zone” or commissioning in progress”.

[8] The Commission indicated in transcript that, in considering the criteria for considering harshness etc. under s.387 of the Act, there was a valid reason for the dismissal.

[9] Section 387 of the Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant

[10] In relation to s.387(a), the Commission is satisfied that the valid reason related to the serious misconduct of the Applicant, relating to a serious breach of safety requirements.

[11] In relation to s.387(b), the Commission is satisfied that the Applicant was notified of that reason.

[12] In relation to s.387(c), the Commission is satisfied that that requirement had been met.

[13] In relation to s.387(d), the Commission is satisfied that the requirement had been met and that the Applicant had been provided with the opportunity to have a support person.

[14] In relation to s.387(e), the termination does not relate to any performance issues regarding the Applicant.

[15] In relation to s.387(f) and (g), the Commission noted that the Respondent is a large organisation with a dedicated human resources management specialist.

[16] In relation to s.387(h), there were no other matters that the Commission considered relevant.

[17] The Commission indicated at the hearing that it did not consider that the termination was harsh or unjust when taking into account the valid reason for the termination.

[18] The Commission did determine, however, that the termination was unreasonable and it did so on the basis that it felt that there was possibly an additional step that the Respondent could have taken by interviewing the Applicant further before it ultimately made the decision to terminate the services of the Applicant.

[19] It would appear that prior to the further meeting that was convened for Wednesday 26 March 2014 at Reedy Creek, which, according to Mr Hennrie’s statement, was a further interview the decision had been made to terminate the services of the Applicant. The Commission felt that that was unreasonable and that, in its view, the Applicant should have had the additional step due to the serious nature and the ramifications of the assertions made against him and his 12 years of unblemished service.

[20] The Commission then awarded, on the basis of the unreasonableness, eight weeks’ pay at the rate of pay that the Applicant was earning at the time of the termination.

[21] In doing so, the Commission made it abundantly clear to the Applicant that it was satisfied that there were serious grounds for the termination to take effect but that the Respondent should have provided at least one more opportunity for the Applicant to defend himself.

[22] Accordingly, the Commission ordered that eight weeks’ pay at the rate of pay at the time of the termination of the Applicant be awarded.

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