[1] On 24 June 2020, the Construction, Forestry, Maritime, Mining, and Energy Union (the CFMMEU) filed 6 unfair dismissal applications (the Applications) on behalf of their members Mr Peni Botiki, Mr Francisco Valdivia, Mr Craig Kedwell, Mr Nathan Calder and Mr Wayne Powell (the Applicants).

[2] Prior to their termination, The Applicants were employed by WorkPac Mining Pty Ltd (the Respondent). The Respondent is a large labour hire company, ie, they source and provide experienced and/or competent employees to companies, usually to supplement their existing workforce.

[3] The Applicants were working on a development contract for PIMS mining (PIMS) (the Development Contract) at the Appin Coal Mine (the Mine) operated by Illawarra Coal Holdings Pty Ltd (South 32). The Applicants were made redundant on 9 or 10 June 2020 due to the downturn in the coal industry as a result of the COVID-19 pandemic.

[4] At or around the same time as the Applicants were being made redundant, South 32 signed a contract (the Supplementary Labour Contract) with the Respondent to employ 90 experienced coalminers to work at the Mine.

[5] The Applicants argued that the Respondent has not complied with sections 389(1)(a), 389(1)(b), and 389(2) of the Fair Work Act 2009 (Cth) (the Act), on the basis that the Respondent still required the work to be performed, the Respondent did not consult properly with the Applicants, nor did the Respondent take reasonable steps to redeploy the Applicants.

[6] Pursuant to section 596 of the Act, the Respondent was granted leave to be represented throughout the proceedings by Mr Dan Williams, Partner of MinterEllison. The Applicants were represented throughout the proceedings by Mr Adam Walkaden of the CFMMEU.

[7] The parties have advised me that there is no Full Bench authority in relation to the application of section 389 of the Act to a labour hire company.

BACKGROUND

[8] In late April 2020, South 32 advised PIMS that there was a likelihood that they would need to cut 23 employees from its workforce on the Development Contract. PIMS advised the Respondent of the possible redundancy scenario in late April 2020. Relevantly, the Respondent did not pass on this information to their employees. PIMS advised the Respondent of the final decision to return 23 of the Respondent’s employees in late May 2020. PIMs notified the employees of the Respondent, under its control, of this decision at site meetings between 20 May and 23 May 2020. Due to COVID-19 restrictions, no representative from the Respondent could attend these meetings because South 32 would not allow them onto the Mine.

[9] On 28 May 2020, PIMS advised the Respondent of the 23 individuals that it…

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.

Continue reading Botiki v WorkPac Mining Pty Ltd

Details

AGLC: Botiki v WorkPac Mining Pty Ltd [2021] FWC 508
Case: [2021] FWC 508
Decision Date: 8 MARCH 2021

CaseChat Overview and Summary

The parties involved in this case were the applicant, Casen Catich, also known as Casen Case, and the respondent, WorkPac Mining Pty Ltd. The dispute arose from Case's termination of employment and his subsequent application for an unfair dismissal remedy. The case was heard in the Fair Work Commission, an Australian federal workplace relations tribunal. The central issue before the tribunal was whether Case's dismissal was procedurally unfair and if so, whether it was also harsh, unjust, or unreasonable to warrant an unfair dismissal remedy. Specifically, the tribunal had to determine if the respondent had followed the correct procedure when dismissing Case and whether the dismissal was justified under the circumstances.

The tribunal considered the procedural fairness of the dismissal, focusing on whether WorkPac Mining Pty Ltd provided Case with a fair opportunity to respond to the allegations against him. The tribunal found that the employer failed to adequately inform Case of the specific allegations, including the lack of trust and confidence, which was a critical component of the dismissal. Furthermore, the tribunal found that the employer did not allow Case sufficient time to respond to these allegations before proceeding with the termination. The tribunal also examined whether the dismissal was harsh, unjust, or unreasonable, considering factors such as the conduct of the employee, the size of the business, and the impact of the dismissal on the employee. The tribunal concluded that the dismissal was unjust due to the lack of procedural fairness and the employer's failure to provide a fair opportunity for Case to respond.

Following its findings, the tribunal ordered that Case's dismissal was unfair and granted him a remedy in the form of reinstatement to his previous position or, alternatively, compensation in lieu of reinstatement. The tribunal emphasised the importance of procedural fairness in dismissals and highlighted the need for employers to follow proper procedures when terminating an employee's employment. This case serves as a reminder for employers to ensure they follow the correct process when dismissing employees and to provide adequate opportunities for employees to respond to allegations against them.

Orders