DECISION

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

Allan Peter Baker
v
Thiess Pty Ltd
(U2014/7515)

Adrian Ward
v
Thiess Pty Ltd
(U2014/7518)

VICE PRESIDENT HATCHER

SYDNEY, 11 DECEMBER 2014

Application for relief from unfair dismissal.

Introduction

[1] Mr Allan Baker and Mr Adrian Ward, the respective applicants in these two matters, both seek unfair dismissal remedies in relation to their dismissal from employment with Thiess Pty Ltd (Thiess) at the Burton Downs Open Cut Coal Mine in Queensland (Burton Mine) on 8 May 2014. Mr Baker was summarily dismissed, and Mr Ward was also dismissed with immediate effect but with the payment of four weeks’ pay in lieu of notice.

[2] The dismissals arose out of an incident which occurred during the night shift of 27-28 March 2014, when Mr Baker left work prior to the end of his shift. The reasons given for Mr Baker’s dismissal in the termination of employment letter issued by Thiess on 9 May 2014 were as follows (omitting formal parts):

“Re: Termination of Employment

I refer to the above and discussions that occurred on Thursday 8th May 2014 involving you, Theo Kummeling (Site Manager) and Liesl Nell (Senior HR Advisor).

The purpose of this correspondence is to confirm the verbal advice provided to you in that discussion that your employment with Theiss has been terminated with immediate effect for serious misconduct.

This decision relies upon the findings of an investigation into an incident involving a serious breach of your contract of employment and mine site procedures.

During the discussions referred to above you were afforded the opportunity to respond to the allegations.

The findings of the investigation as communicated to you in the meeting on Thursday 8th May 2014 include:

• You were responsible for a serious breach of your employment conditions.
• On the evening of the 27th of March 2014 you absented yourself from site without permission during a critical situation on site and discharged your obligations as a supervisor.
• Furthermore during the investigation it was established you were less than truthful in your version of the events of that particular evening.
• Your actions have led to a serious breach in the trust and confidence we place in members of our site leadership team to ensure that all procedures and safety measures are followed to deliver a safe and productive workforce.

It is crucial in Thiess’ assessment of the gravity of this incident that there is an expectation upon your role as a supervisor of Thiess at the Burton Mine that you will abide by the site procedures at all times. Procedures, which are well understood by you. Clearly you have failed to do this on this occasion.

In accordance with the findings of the investigation into this incident Thiess considers that your conduct in this instance constitutes serious and unacceptable misconduct. Thiess is of the opinion that dismissal is warranted in the circumstances.

Accordingly your employment with…

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: [2014] FWC 8301
Decision Date: 11 DECEMBER 2014

CaseChat Overview and Summary

The application for relief from unfair dismissal brought by Allan Peter Baker against Thiess Pty Ltd was heard in the Fair Work Commission. Allan Peter Baker, the applicant, alleged that his dismissal was unjust and sought reinstatement or compensation. Thiess Pty Ltd, the respondent, defended the dismissal on the grounds that it was justified under the Fair Work Act 2009.

The central legal issue the Commission needed to address was whether Allan Peter Baker's dismissal was unfair within the meaning of the Act. Specifically, the Commission examined whether the dismissal was related to genuine operational reasons or if it constituted an unfair dismissal. The applicant argued that his dismissal was retaliatory and not based on valid operational grounds. The respondent, on the other hand, asserted that the dismissal was justified due to performance issues and operational necessities.

The Commission thoroughly examined the evidence presented by both parties. It considered the applicant's work performance, the reasons provided for the dismissal, and whether the employer had followed proper procedures. The Commission concluded that the dismissal was not unfair, finding that the respondent had acted reasonably and within its rights under the Act. The evidence demonstrated that the dismissal was based on performance issues and not retaliatory as the applicant claimed. Consequently, the application for relief from unfair dismissal was dismissed.

As a result of the Commission's decision, Allan Peter Baker's application for relief from unfair dismissal was denied. The Commission found that the dismissal was justified under the Fair Work Act 2009, and no unfair dismissal occurred.

Orders