Browne v Coles Group Supply Chain Pty Ltd

[2014] FWC 3670

FAIR WORK COMMISSION

DECISION

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

David Browne
v
Coles Group Supply Chain Pty Ltd
(U2013/15842)

VICE PRESIDENT HATCHER SYDNEY, 10 JUNE 2014

Application for relief from unfair dismissal.

Introduction

[1] Mr David Browne, the applicant in this matter, was summarily dismissed from his employment with Coles Group Supply Chain Pty Ltd (Coles) at its Goulburn Distribution Centre (GDC) on 5 November 2013. He had been employed by Coles at the GDC since April 1995 - a period of over 18 years. The reason for the dismissal was that Coles considered that Mr Browne had engaged in serious misconduct by becoming involved in a physical altercation with another employee at the GDC, Mr Ryan Hearne, on 23 October 2013. Mr Hearne was also dismissed on 5 November 2013.

[2] Mr Browne has lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). He contends that his dismissal was unfair, and he seeks the remedy of reinstatement.

Preliminary matters for determination

[3] Section 396 of the Act requires that four specified matters must be decided before the merits of Mr Browne’s application may be considered. There was no contest between the parties about any of those matters. I find that:

(a) Mr Browne’s application was made within the period required by s.394(2);

(b) Mr Browne was a person protected from unfair dismissal;

(c) Coles was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) Mr Browne’s dismissal was not a case of genuine redundancy.

The evidence

[4] Mr Browne gave evidence in support of his application, and tendered a number of documents. Coles called the following witnesses in its case:

• Stewart Kennedy, the Manager of the GDC, who made the decision to dismiss Mr Browne.
• Kirsty Williams, at the relevant time State HR Advisor, who conducted Coles’ investigation into the physical altercation.
• Sean Atkinson, Human Resources Manager.
• James Heenan, Team Member.
• Robbie Pooley, Team Member.
• Gary Wilson, Team Member.

[5] In the course of her investigation of the matter, Ms Williams interviewed Mr Browne, Mr Heenan, Mr Pooley and Mr Wilson, as well as a number of persons who did not give evidence, including Mr Hearne. Their records of interview were annexed to Ms Williams’ statement of evidence. In the case of persons who were interviewed and who gave evidence, they were able to be tested on the contents of their records of interview, and it was therefore appropriate to give weight to those records of interview. In the case of persons who were interviewed and did not give evidence, I have taken into account their records of interview, and given them weight to the extent that the matters contained therein were not in contest, or not contradicted by the witness evidence, or confirmed by the witness…