C McLean v Transfield Services Limited - [2013] FWC 2573

[2013] FWC 2573

FAIR WORK COMMISSION

DECISION

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

C McLean
v
Transfield Services Limited
(U2012/14575)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 8 MAY 2013

Application for unfair dismissal remedy - arbitration - compensation in lieu of reinstatement.

[1] This is an application by Mr C McLean (the applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Transfield Services Limited (the respondent).

[2] The applicant was represented by Mr N Campbell, of counsel, instructed by the applicant’s union the Construction, Forestry, Mining and Energy Union (CFMEU). The respondent was represented by Mr D Hope, Executive Manager Industrial Relations for the respondent.

Background

[3] The applicant worked for the respondent on the Qenos Altona Revamp in February 2012, until completion on September 2012 and then on the Qenos Shutdown project from 1 October 2012. The termination of the applicant’s employment occurred on 27 October 2012, following an incident in relation to movement of a control valve from a platform on the LEAL Converter to ground level on 20 October 2012.

[4] The incident of 20 October 2012 was investigated by the respondent, led by Mr T Ibrahim, Safety, Health and Environment (SHE) Field Coordinator, with the involvement of Mr A Campbell, TSL TA HSF Manager. The report prepared - identified as Incident INC-33865 - is in evidence. 1 It states:

● “Whilst removing a control valve via a crane lift the load moved injuring the rigger by trapping his finger between the valve and equipment”;

● “First aid applied, injured person taken to hospital, area isolated”;

● Under “Eye Witness Subform”, the report refers only to Mr P Boicovitis, SHE Field Coordinator, and has attached an electronic form - a statement, identified as img-Y01072612-0001.pdf;

● It records as persons affected Mr R Grunberg (the Dogman) , medically treated injury;

● The incident overview is recorded as “When removing a control valve the valve rigging released resulting in the control valve falling to grade [sic] and injuring a team mate”;

● The sequence of events is recorded as:

“Work team organise a 25 ton franna and rigged the valve from the 1st (2nd level in Qenos Definition) of the converters for removal. 25 ton crane was to [sic] large which required the Supervisor to request the assistance of the 12 ton franna”:

“Insufficient headroom for boom of 25T crane. Supervisor requests 12T crane be used for the task. Hook of the 12T crane is removed by the work team to allow additional range of lift.”

“Work team believed that sling would have been to [sic] long due to head room requirements.”

“Did not have other alternative at hand.”

“Failure to complete risk assessment and identify correct lifting methods.”

“Rigger did not review and sign existing safe work review in the work pack for the task.”

“Dogman directs crane boom into location and with rigger lift control valve several times for…

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.

Keep reading for free

Create a free CaseChat account to read C McLean v Transfield Services Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FWC 2573
Decision Date: 8 MAY 2013

CaseChat Overview and Summary

In the case of C McLean v Transfield Services Limited, the applicant, C McLean, sought a remedy for unfair dismissal from Transfield Services Limited. The matter was resolved in an arbitration process overseen by the Fair Work Commission, which considered whether compensation in lieu of reinstatement was an appropriate remedy. The applicant had been employed by Transfield Services Limited and subsequently dismissed. McLean argued that the dismissal was unjust and sought reinstatement or, alternatively, compensation.

The primary legal issue before the court was to determine whether the applicant's dismissal was unfair under the Fair Work Act 2009. The court had to consider the relevant provisions of the Act, including the criteria for unfair dismissal and whether the employer's actions met the threshold for unfairness. Additionally, the court needed to assess whether compensation in lieu of reinstatement was a suitable remedy if the dismissal was found to be unfair.

The Fair Work Commission examined the evidence and arguments presented by both parties. The Commission determined that the dismissal was indeed unfair, as it was not a valid reason for termination under the Act. The Commission considered the applicant's contribution to the company, the employer's conduct, and the overall fairness of the dismissal process. Given that reinstatement was not feasible, the Commission found that compensation in lieu of reinstatement was an appropriate remedy. The amount of compensation was calculated based on the applicant's lost earnings and benefits.

The Fair Work Commission ordered Transfield Services Limited to pay the applicant compensation in lieu of reinstatement, determining the exact amount based on the evidence presented. This decision provided the applicant with a financial remedy that reflected the unjust nature of the dismissal while acknowledging the impracticality of reinstatement.

Orders