FEDERAL COURT OF AUSTRALIA
Baker v Patrick Projects Pty Ltd [2014] FCAFC 165
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 167 of 2014
BETWEEN: JESSE BAKER
ApplicantAND: PATRICK PROJECTS PTY LTD
First RespondentFAIR WORK COMMISSION
Second Respondent
JUDGE:
DOWSETT, TRACEY & KATZMANN JJ
DATE OF ORDER:
10 NOVEMBER 2014
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
FAIR WORK DIVISION
WAD 167 of 2014
BETWEEN: JESSE BAKER
ApplicantAND: PATRICK PROJECTS PTY LTD
First RespondentFAIR WORK COMMISSION
Second Respondent
JUDGE:
DOWSETT, TRACEY & KATZMANN JJ
DATE:
10 NOVEMBER 2014
PLACE:
PERTH
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Details
- AGLC
- Baker v Patrick Projects Pty Ltd [2014] FCAFC 165
- Case
- [2014] FCAFC 165
- Decision Date
CaseChat Overview and Summary
Baker, an employee, brought an action against Patrick Projects Pty Ltd after he was dismissed from his employment. The Fair Work Commission dismissed his application for unfair dismissal and the Full Bench of the Commission refused him permission to appeal. Baker now seeks to have the Full Bench's decision quashed and for the Court to determine the appeal itself, finding that his dismissal was harsh, unjust and/or unreasonable and that he be reinstated or awarded compensation. In the alternative, he seeks an order of mandamus to send the matter back to the Commission to be heard by a different Commissioner. The central legal issue for the Court to decide was whether the Full Bench of the Fair Work Commission fell into jurisdictional error when it refused Baker permission to appeal. The Court held that there was no jurisdictional error and dismissed the application. The Full Bench was correct to conclude that the Commissioner had not misapplied the provisions of the Workers’ Compensation Act, nor had the Commissioner erred in relying on unreliable attendance records. The Full Bench had correctly applied the law to the facts and there was no jurisdictional error in its decision. The Full Bench's decision was therefore not quashed.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
On 7 March 2013 Jesse Baker lost his job. On that day his employer, Patrick Projects Pty Ltd (“Patrick”), sent him a letter terminating his employment effective four days later. Mr Baker considers that his dismissal was unfair and he applied to the Fair Work Commission (then known as Fair Work Australia) for a remedy but the Commissioner who heard his application dismissed it and the Full Bench refused him permission to appeal. In this proceeding, Mr Baker contends that the Full Bench fell into jurisdictional error and he seeks an order for certiorari to quash its decision. He asks this Court to determine the appeal for itself, to find that his employment was terminated in circumstances that were harsh, unjust and/or unreasonable, and that he be reinstated to his job or awarded compensation equivalent to six months’ wages. In the alternative, he seeks an order in the nature of mandamus sending the matter back to the Commission to be heard by a different Commissioner. Background On 17 September 2011 Mr Baker was injured at work. At that time he was employed by the Offshore Marine Services Alliance (“OMSA”). On 29 April 2012 Mr Baker’s employment was transferred to Patrick. At the time he began his employment with Patrick, however, he was not working. It appears that he was unfit for work as a result of his injury until 4 May 2012 when he was certified fit for restricted duties under a return to work program. On 20 August 2012 and then again on 15 February 2013 the scope of his duties was widened. The return to work program provided that Mr Baker work up to 40 hours per week in accordance with Patrick’s operational requirements. By 31 January 2013, however, he was certified fit for his pre-disability duties without restriction and the return to work program expired on 15 February 2013. But Mr Baker did not keep the hours of work for which the return to work program provided. In July 2012 he was counselled about his attendance record and certain other matters. On 6 December 2012 Duncan Anderson (Patrick’s Operations Manager) requested a meeting with Mr Baker and Marion Storey (Patrick’s Human Resources Advisor) regarding his poor attendance and communications. Mr Baker said that his poor attendance and communication were due to family issues. On 20 December 2012 Ms Storey contacted Mr Baker and he referred again to his family and personal issues. Ms Storey advised Mr Baker to make use of Patrick’s Employee Assistance Program. Mr Baker agreed and said he would try harder to attend work, yet between 21 December 2012 and 28 February 2013 inclusive, Patrick’s records show that he failed to attend work on 27 days. On 14 February 2013 Patrick sent a letter to Mr Baker asking him to attend a meeting on 19 February 2013 to discuss his absenteeism. Patrick claimed that its records showed that Mr Baker had failed to report to work 15 times and had “booked off” (that is, he contacted his employer after being allocated a shift to indicate that he was not available) on seven occasions since 15 December 2012. The company promised Mr Baker, however, that it had formed no view on the matter and he would be given a full opportunity to discuss the reasons for his absences.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is unnecessary to refer to the other submissions because they are irrelevant to the present application. The decision of the Commissioner The Commissioner rejected Mr Baker’s submission that Patrick’s only recourse was to make an application for an order under s 156B of the Workers’ Compensation Act and that its failure to do so rendered the dismissal harsh and unfair. He considered that there was no obligation on an employer to apply for an order under s 156B. Furthermore, he described Mr Baker’s argument as self-serving. He said (at [64]):The argument pre-supposes that because the Employer did not exercise a discretionary provision of the WC Act to seek an order to participate in a RTWP [return to work program], it is harsh and unfair. Such an argument ignores causation and the obligation of Mr Baker to attend work when required and in accordance with an agreed RTWP. As for the allegation that the records were inaccurate, the Commissioner noted a concession made by Patrick that there were inaccuracies but the Commissioner apparently regarded them as either irrelevant or inconsequential. He said (at [67]):Mr Baker appears to be submitting to the Commission that if he is able to demonstrate some inaccuracies in the data, its entirety should cease to have any probative value. The burden of proof lies with the Applicant to persuade the Commission that he was unfairly dismissed. The overall reason for Mr Baker’s dismissal was primarily his absence from work and his non attendance at meetings to discuss these absences. The Commissioner then summarised Mr Baker’s attendance record, based, it would appear, on the employer’s records. At [69], however, he said:While there may have been some inaccuracies and nomenclature difficulties with Mr Baker’s non attendance at work, I am satisfied that overall Mr Baker approached his attendance at work as discretionary. Any differences between what the Employer alleged and the inaccuracies revealed in cross examination, do not materially detract from the overall reason why Mr Baker was dismissed on 7 March 2013. The Commissioner said there was no probative evidence to show that Mr Baker was treated unfairly in comparison with other employees in a similar classification and he found that the evidence contradicted Mr Baker’s submission that Patrick knew at all times where he was and what he was doing when he was away from work. He described Mr Baker’s evidence under cross-examination as “purposely vague and lacking credibility”. He concluded that Patrick had “a sound, defensible and well founded reason to dismiss Mr Baker” and that the dismissal was not harsh, unjust or unreasonable. I should note that, in the course of his reasons, the Commissioner considered each of the matters the Commission was required to take into account in accordance with s 387 of the Fair Work Act 2009 (Cth) (“FW Act”).The appeal to the Full Bench The criteria for considering whether a dismissal was harsh, unjust or unreasonable are set out in s 387 of the FW Act. It was never suggested that the Commissioner erred by failing to have regard to these matters. Rather, before the Full Bench Mr Baker submitted that the Commissioner misapplied the provisions of the Workers’ Compensation Act and that the Commissioner erred in relying on unreliable attendance records.
Ratio Decidendi
Legal Principle Established
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