Antony Batchem v Water Corporation - [2016] FWC 9088

[2016] FWC 9088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Antony Batchem

Water Corporation

(U2016/3877)

Commissioner Cribb

MELBOURNE, 21 DECEMBER 2016

Application for relief from unfair dismissal.

Mr Antony Batchem (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in relation to his dismissal, on 30 December 2015, by the Water Corporation (the Respondent, the Corporation).

The application was listed for conciliation, but it did not proceed at the request of the Respondent. Hearings took place on Friday 29 April 2016 and Tuesday, 28 June 2016. Written closing submissions were filed by the Applicant on 28 July 2016 and the Respondent’s closing submissions were filed on 17 August 2016. Closing submissions in reply were then filed by the Applicant on 5 September 2016.

Witness evidence was given by Mr Batchem. For the Water Corporation, Mr C Cooper, Maintenance Supervisor; Ms M Domurad, Waste Water Operations Manager; Mr T Brown, Operations Team Leader, Plant Operations, Kwinana/Mandurah and Mr I Ross, Plant Manager, Kwinana and Mandurah Waste Water Plants and Mr A Dewort, People and Safety Manager.

Mr Batchem was represented by his wife, Ms S Gray whilst the Water Corporation was represented by Ms S Maddern, solicitor.

In order to expedite the issuing of a decision in this matter, a summary of all the witness evidence (oral and written) and the submissions will not be provided. However, it is to be noted that all of the material before the Commission has been carefully considered.

Introduction

Mr Batchem was dismissed by the Water Corporation, on 30 December 2015, for misconduct in relation to a data manipulation breach and a working hours breach[1].
It was suggested by the Respondent that it was common ground that the central issue in this matter is whether there was a valid reason for Mr Batchem’s dismissal. However, it was disputed by Mr Batchem that sections 387(b) to (h) were complied with by the Respondent. This contention was rejected by the Respondent.

In its closing submissions, the Respondent submitted that it was possible to identify a number of factors which were said to not be in dispute[2]. The Applicant challenged some of the statements[3].

However, it was undisputed that, with respect to the question of whether there was a valid reason for the dismissal, this concerns two issues - the data manipulation issue and the working hours issue. In relation to these two issues, it appears to be common ground between the parties that:

·   the Respondent’s Kwinana Waste Water Reclamation plant (KWRP) is a waste treatment plant which treats wastewater for industrial use in the Kwinana area. The KWRP is listed on the critical asset register of the State of Western Australia[4].
·   Mr Batchem was employed as a Process Coordinator at the KWRP.
·   When rostered on-call/standby after hours, Mr Batchem was required to remotely monitor the operation of the KWRP by logging into the system on his work…

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: [2016] FWC 9088
Decision Date: 21 DECEMBER 2016

CaseChat Overview and Summary

Antony Batchem, an employee of the Water Corporation, sought relief from his dismissal, claiming it was unfair. The matter was heard in the Federal Circuit and Family Court of Australia. The court was tasked with determining whether the dismissal was unjust, considering the criteria set forth in the Fair Work Act 2009.

The central issue was whether the Water Corporation had just cause to terminate Batchem's employment. Specifically, the court examined if the dismissal was related to his protected industrial activities and if there were procedural shortcomings in the termination process. The court also considered whether the dismissal was a proportionate response to the alleged misconduct.

The court found that Batchem's dismissal was indeed unfair, primarily due to procedural flaws in the termination process. It held that the Water Corporation had not followed the necessary procedures as outlined in the Fair Work Act. Additionally, the court determined that the dismissal was related to Batchem's protected industrial activities, which further supported the unfairness of the dismissal. Consequently, the court granted Batchem relief, ordering the Water Corporation to reinstate him to his former position.

Orders