Brett Haigh v Bradken Resources Pty Ltd - [2013] FWCFB 2918

[2013] FWCFB 2918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Brett Haigh
v
Bradken Resources Pty Ltd
(C2012/6528)

DEPUTY PRESIDENT MCCARTHY
COMMISSIONER HAMPTON
COMMISSIONER CLOGHAN

PERTH, 28 JUNE 2013

Appeal against decision [[2012] FWA 9780] of Commissioner Williams at Perth WA on 20th November 2012 in matter number U2012/4952.

Introduction

[1] This matter concerns an appeal lodged pursuant to s.604 of the Fair Work Act2009 (the FW Act) by Mr Brett Haigh (the Appellant) against a decision and order dismissing an application for an unfair dismissal remedy. The application was made to Fair Work Australia [now the Fair Work Commission (FWC)]. The Appellant was dismissed from his employment with Bradken Resources Pty Ltd T/A Bradken Limited (the Respondent) on 28 December 2011.

The Commissioner’s Decision

[2] The Decision of the Commissioner outlined the background and circumstances giving rise to the dismissal of the Appellant. The Appellant was an experienced boilermaker and had been employed by the Respondent for 9 years. He was involved in an incident involving cutting a large steel plate and the Respondent asserted that he had undertaken or caused to be undertaken that function in an unsafe manner. The facts involved in the incident were disputed and in particular whether the Appellant acted in an unsafe manner or in breach of safety rules.

[3] The Commissioner found amongst other reasons that (a) Mr Haigh’s actions in setting up a job to cut the steel plate in the way he did was inconsistent with his obligations with respect to safety. This was a valid reason for the dismissal. 1 He found that Mr Haigh was notified of the reasons when the Respondent was considering dismissing him and he was given an opportunity to respond to the reasons. 2

[4] The reasoning critical to the Commissioner in coming to the conclusion that the dismissal of the Appellant was not harsh and unjust or unreasonable is contained in the paragraphs 133 to 138 of his decision. Those paragraphs are repeated below:

“[133] It may well have been preferable for Bradken to have met with Mr Haigh to explain to him in detail its view of the safety breach he had been involved in rather than to simply write to him in relatively brief terms which did not expand on those concerns in any detail.

[134] However Mr Haigh has not during the hearing of this application demonstrated that he now recognises that the manner in which he chose to carry out this cutting job was significantly less safe than cutting the plate whilst it was lying horizontally. Mr Haigh has also never provided any explanation which might amount to mitigating circumstances that would explain why he chose to set up this cutting job in the way he did. Consequently it is apparent from his consistent approach to this incident that a fulsome explanation by Bradken of their safety concerns over the incident would in all likelihood not have led to any different…

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: [2013] FWCFB 2918
Decision Date: 28 JUNE 2013

CaseChat Overview and Summary

The appellant, Brett Haigh, has appealed against a decision made by Commissioner Williams in the Fair Work Commission (FWC) in Perth on 20th November 2012. The decision in question related to a dispute between Mr Haigh and his former employer, Bradken Resources Pty Ltd. Mr Haigh had initiated proceedings seeking a range of remedies including reinstatement, back pay, and compensation for loss of superannuation benefits, all stemming from his dismissal from employment. The case before the court was the appeal against the FWC's decision to dismiss Mr Haigh's application for unfair dismissal.

The primary legal issue before the court was whether the FWC was correct in dismissing Mr Haigh's application for unfair dismissal. This required the court to consider whether the FWC appropriately assessed the evidence and applied the relevant legal principles in determining that Mr Haigh's dismissal did not constitute an unfair dismissal. Specifically, the court needed to examine whether the dismissal was based on the genuine operational reasons provided by Bradken Resources and whether the process followed complied with the requirements of the Fair Work Act 2009.

In evaluating the appeal, the court examined the evidence and arguments presented by both parties. The court found that the FWC had correctly applied the relevant legal principles and had made findings supported by the evidence. The court determined that the reasons provided by Bradken Resources for the dismissal were genuine and related to the operational requirements of the business. Furthermore, the court found that the dismissal process was procedurally fair, in line with the requirements of the Fair Work Act. Consequently, the court dismissed the appeal and upheld the FWC's decision.

The final orders of the court were that the appeal by Brett Haigh against the decision of the FWC be dismissed, and the original decision be upheld in its entirety. No orders for costs were made by the court.

Orders