Brian Derek Scantlebury v BHP Coal Pty Ltd - [2022] FWC 2261

[2022] FWC 2261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brian Derek Scantlebury
v

BHP Coal Pty Ltd

(U2022/3651)

COMMISSIONER HUNT

BRISBANE, 14 OCTOBER 2022

Application for an unfair dismissal remedy – unable to perform the inherent requirements of the role - valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.

On 28 March 2022, Mr Brian Scantlebury made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from BHP Coal Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

On 27 April 2022, the Respondent filed a Form F3 Employer Response to the application. No jurisdictional objections were raised.

Legal representation

The matter was listed before me for Hearing on 12 August 2022 by video using Microsoft Teams. The Respondent sought to be represented at the Hearing by Corrs Chambers Westgarth. Mr Scantlebury opposed leave being granted.

In support of the Respondent’s request for leave to be granted for it to be represented, Ms Kristin Gamble, Head of Legal, Employee Relations in the BHP Legal Team, Australia, filed a witness statement. Ms Gamble explained that the BHP Legal Team services all of the entities within the BHP Group in Australia. Seven members of the team practice employment law.

Some of the lawyers are seconded from law firms and some are temporarily replacing employees on parental leave. Only two employees, including Ms Gamble, are permanent BHP employees.

I was not satisfied that the matter before the Commission was sufficiently complex for me to exercise my discretion pursuant to s.596(2)(a) of the Act to grant leave for the Respondent to be represented. Given the depth of experience of the legal practitioners within the BHP Legal Team, I was not convinced it was necessary to grant leave for representation at the Hearing. In any event, the Hearing lasted for approximately one hour, demonstrating that the matter was not sufficiently complex, nor did it require extensive cross-examination of witnesses.

Mr Scantlebury represented himself at the Hearing. The Respondent was represented by Ms Melissa Mason, Principal Employee Relations.

Relevant legislation

Section 394 of the Act provides:

“394      Application for unfair dismissal remedy
(1)       A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2)       The application must be made:
(a)       within 21 days after the dismissal took effect; or
(b)       within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be…

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: [2022] FWC 2261
Decision Date: 14 OCTOBER 2022

CaseChat Overview and Summary

Brian Derek Scantlebury (the Applicant) has applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy in relation to his dismissal from BHP Coal Pty Ltd (the Respondent). The application was made under s.394 of the Fair Work Act 2009 (the Act). The Applicant was dismissed on 11 March 2022. The Applicant alleged that his dismissal was harsh, unjust or unreasonable. The Respondent submitted that the Applicant was dismissed because he was unable to perform the inherent requirements of his role as Engineer Projects. The Respondent further submitted that the dismissal was not harsh, unjust or unreasonable. The Commission determined that the dismissal was not harsh, unjust or unreasonable and dismissed the application. The Commission found that the dismissal was for a valid reason related to the Applicant's capacity. The Applicant was given an opportunity to respond to the reason for dismissal. There was no unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal. The dismissal was not for unsatisfactory performance and there was no absence of a dedicated human resource management specialist that impacted on the procedures followed. There were no other relevant matters sufficient to render the dismissal unfair. The Commission considered the criteria set out in s.387 of the Act and concluded that the dismissal was not harsh, unjust or unreasonable.

Orders