Brenda Plunkett v Thiess Pty Ltd - [2014] FWC 3287

[2014] FWC 3287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Brenda Plunkett
v
Thiess Pty Ltd
(U2013/14637)

COMMISSIONER STANTON

NEWCASTLE, 16 MAY 2014

Application for unfair dismissal - whether dismissal harsh, unjust or unreasonable - Fair Work Act 2009 - ss.387, 394, 587 considered - application dismissed

Introduction

[1] This decision relates to an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Miss Brenda Plunkett (the applicant) arising from the termination of her employment by Thiess Pty Ltd (the respondent) on 30 October 2013.

[2] At the hearing of the matter Mr K Endacott from the Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District (the Union) appeared for the applicant. Ms C Brattey, solicitor, appeared for the respondent by permission.

Background

[3] The applicant was employed by the respondent at its Mt Owen Mine on 10 October 2011. On 9 October 2013, the applicant was operating a CAT 793F haul truck when an alarm was activated. The respondent alleged that the applicant subsequently travelled for 1 minute 36 seconds prior to stopping the vehicle. Over that time the vehicle travelled approximately one kilometre. She made a decision to stop the vehicle and shut it down at the first appropriate and safe location which in her view was at the bottom of a ramp.

[4] The applicant was subsequently summarily dismissed for a serious breach of safe operating procedures, namely:

her decision to drive the CAT 793F she was operating for one minute 36 seconds after a stage 3 alarm had sounded;

the fact that she was fully aware of the relevant safe operating procedures, specifically that a category 3 warning states:

“This category requires an immediate safe shutdown of the machine. Injury to the operator can occur. Severe damage to the truck can occur.”

Despite such warning, the applicant chose to disregard these procedures and caused the significant damage to the truck she was operating.

Evidence

Applicant

[5] It was the applicant’s evidence that she had worked at a number of mines prior to commencing work with the respondent. Prior to working on those mine sites she was required to undertake specific familiarisation training including the relevant mine Surface Transport Rules (the Transport Rules) that applied. Each mine was required to develop site specific Transport Rules.

[6] The applicant stated she was summarily dismissed on 29 October 2013 for gross negligence following the incident that occurred on 9 October 2013. The applicant stated that when she was operating the truck on 9 October 2013 the two-way and AM/FM radios were on and was wearing moulded ear plugs at the time. She further stated that the trucks were noisy. When she ultimately heard the relevant alarm she immediately looked at the Vital Information Management System (VIMS) screen. Although she was unsure as to how long the alarm had been running before she heard it, it was the applicant’s evidence…

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: [2014] FWC 3287
Decision Date: 16 MAY 2014

CaseChat Overview and Summary

The matter of Brenda Plunkett versus Thiess Pty Ltd came before the court regarding an application for unfair dismissal. The primary issue was whether the dismissal of Brenda Plunkett by Thiess Pty Ltd was harsh, unjust, or unreasonable under the Fair Work Act 2009. The court was tasked with interpreting the relevant sections of the Act, including sections 387, 394, and 587, to determine the validity of the dismissal.

The legal issues involved assessing the fairness of the dismissal in the context of the statutory provisions. The court considered the procedural fairness of the dismissal process, the reasons provided by the employer, and whether the dismissal was justified under the circumstances. Additionally, the court examined whether there were any mitigating factors that could affect the fairness of the dismissal. The key focus was on whether the employer had acted in accordance with the principles of procedural fairness and whether the dismissal was justified on the grounds of misconduct or capability.

In its decision, the court concluded that the dismissal was not harsh, unjust, or unreasonable. The employer had provided clear reasons for the dismissal, which were supported by evidence. The court found that the employer had acted in accordance with the statutory requirements and that the dismissal was justified based on the misconduct and capability grounds. The court also noted that the procedural fairness of the dismissal process was maintained throughout. Consequently, the court dismissed the application for unfair dismissal.

The court's decision was based on a thorough analysis of the evidence and the application of the relevant legal principles. The court found that the employer had acted appropriately and that the dismissal was justified under the Fair Work Act 2009. The application for unfair dismissal was therefore dismissed.

Orders