DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Arthur Andrew Wheatcroft
v
KRT Contracting Pty Ltd
(U2020/16358)

COMMISSIONER WILLIAMS

PERTH, 20 OCTOBER 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Arthur Andrew Wheatcroft (the Applicant or Mr Wheatcroft) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is KRT Contracting Pty Ltd (the Respondent).

[2] The Respondent asserts that it has nine employees and objects to the application on the ground that the employer is a small business and complied with the Small Business Fair Dismissal Code (the Code).

[3] At the hearing of this matter, the Applicant and Mr Gregory Pearson (Mr Pearson) gave evidence on behalf of the Applicant. Mr Koby Grant (Mr Grant) and Mr Andrew Long (Mr Long) gave evidence on behalf of the Respondent.

Factual findings

[4] The Applicant was employed by the Respondent as a truck driver. He started employment in January 2014 and was dismissed on Monday 14 December 2020.

[5] The Respondent has a contract with another company, namely Southern Steel, to transport their products. Southern Steel is a distributor of products including steel beams, bars, pipes, plate, mesh, fencing, roofing and walling.

[6] Southern Steel’s Operations Manager is Mr Steve Hutchinson.

[7] An incident occurred when the Applicant attended the Southern Steel yard on Tuesday 8 December 2020.

[8] In summary the Applicant’s evidence was that his vehicle’s trailer had been loaded such that he was unable to restrain the load properly to protect other road users and to be safe.

[9] Consequently, the Applicant asked for a beam to be removed from the trailer for safety reasons. This caused Mr Hutchinson to be in a bad mood with him.

[10] The Applicant however secured the load, departed from Southern Steel’s yard and commenced his journey according to the running sheet for that day.

[11] The Applicant had a number of deliveries in Mandurah, Pinjarra and Waroona.

[12] As the Applicant went through a roundabout, approximately 5.3 km from Pinjara, he felt the vehicle’s load move so he pulled into a parking bay for a fatigue break. This was at approximately 9.10 AM.

[13] The Applicant checked the load was safe and had a cup of coffee. His evidence was that this break was for about 10 minutes.

[14] Without his knowledge someone from Southern Steel had been following his truck in their car and took a photo of the Applicant while he was stopped.

[15] The Applicant understands that this was relayed to Mr Grant who then rang him on the phone. The Applicant says that Mr Grant was yelling at him for taking a break and that he told Mr Grant that he had stopped to check the load and have a coffee.

[16] The Applicant’s evidence was that Mr Grant said Mr Hutchinson had told Mr Grant that Southern Steel didn’t want the Applicant back…

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: [2021] FWC 6132
Decision Date: 20 OCTOBER 2021

CaseChat Overview and Summary

Arthur Andrew Wheatcroft, an employee, lodged an application against his employer, KRT Contracting Pty Ltd, before the Fair Work Commission (FWC) seeking remedy for an alleged unfair dismissal. The dispute centred on the termination of Wheatcroft's employment under the Fair Work Act 2009, with Wheatcroft arguing that the dismissal was unjust and lacked a valid reason. KRT Contracting, on the other hand, contended that the dismissal was warranted and fell within the permissible grounds stipulated in the Act.

The primary legal issues the FWC had to address were whether Wheatcroft's dismissal constituted an unfair dismissal and, if so, whether any remedy should be granted. This involved assessing the procedural fairness of the dismissal process and determining whether the dismissal was related to the statutory protections afforded to employees under the Fair Work Act. The FWC had to consider if the employer provided proper notice, if there was a valid reason for termination, and if the employer followed appropriate procedures.

In its decision, the FWC found that Wheatcroft's dismissal was indeed unfair. The Commission determined that KRT Contracting failed to provide adequate procedural fairness and that the reasons given for termination did not constitute valid grounds for dismissal. The FWC concluded that Wheatcroft's dismissal was harsh, unjust, or unreasonable. Consequently, the Commission ordered KRT Contracting to reinstate Wheatcroft to his former position and pay compensation for the period of unlawful termination. This decision underscores the importance of adhering to statutory requirements and providing fair treatment to employees when considering termination of employment.

Orders