Benjamin Unicomb v SESLS Industrial Pty Ltd - [2025] FWC 186

[2025] FWC 186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Benjamin Unicomb
v

SESLS Industrial Pty Ltd

(U2024/8974)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 23 JANUARY 2025

Application for an unfair dismissal remedy – interference with monitoring equipment– consumption of prescription drug – whether dismissal harsh, unjust or unreasonable – whether valid reason – compensation in lieu of reinstatement

Mr. Benjamin Unicomb (Applicant) has applied to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy for what he alleges was his unfair dismissal by his former employer SESLS Pty Ltd (Respondent, or Brunel).

When can the Commission order a remedy for unfair dismissal?

Section 390 of the Act provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. It was not contested, and I am satisfied, that the Applicant is protected from unfair dismissal for the purposes of s.382.

Section 385 relevantly provides that a person has been unfairly dismissed if the Commission is satisfied of four matters: the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFDC) and the dismissal was not a case of genuine redundancy.

The only point in issue in this matter is whether the Commission can be satisfied that the dismissal was harsh, unjust or unreasonable within the meaning of s.385.

Background

The Applicant commenced employment with the Respondent in May 2020. He was employed as a Multi-Skilled Operator at the Maules Creek open cut coal mine (Mine) in New South Wales. He worked on a ‘drive-in, drive-out’ basis. The Mine is owned and operated by Whitehaven Coal Mining Ltd (WHC). The Respondent supplies contingent labour, including plant operators such as the Applicant, to WHC at the Mine. The Applicant operated equipment owned by WHC and worked at their direction.

The Applicant suffers from various medical conditions, including bipolar disorder and depression. He was prescribed Temazepam and other medications which he took as directed by his treating physicians.

In June 2024 the Applicant was temporarily absent from work due to alleged work-related stress. He provided medical evidence to certify that he was unfit for work from 10 – 20 June 2024. He later provided medical clearances to support his return to work. He returned to work on 27 June 2024.

The medical information supplied by the Applicant to the Respondent in this period made reference to the Applicant’s use…

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: [2025] FWC 186
Decision Date: 23 JANUARY 2025

CaseChat Overview and Summary

The case of Benjamin Unicomb v SESLS Industrial Pty Ltd involves an application by Benjamin Unicomb to the Fair Work Commission (FWC) for a remedy in relation to his dismissal from employment by SESLS Industrial Pty Ltd. The dispute centres on whether the dismissal was harsh, unjust or unreasonable under section 385 of the Fair Work Act 2009 (Cth) (FW Act). The FWC must determine whether the dismissal met the criteria for unfairness as set out in section 387 of the FW Act, including whether there was a valid reason for the dismissal, whether the employee was notified of that reason, and whether the employee was given an opportunity to respond. The court examined the validity of the reasons given for the dismissal, focusing on the employee's conduct regarding the use of a prescribed medication, Temazepam, and his interference with a safety system. The court found that while the employer had a valid reason to terminate the employment, the manner in which the dismissal was carried out was inadequate. The employee was not given proper notice, an opportunity to respond, or a chance to explain his actions. The court concluded that the dismissal was harsh and unreasonable, leading to an order for compensation in lieu of reinstatement. The final order for compensation was determined using the Sprigg formula, adjusted for contingencies and the impact of the employee's misconduct, resulting in a gross compensation amount of $20,648.29.

Orders