DECISION

Fair Work Act 2009
s.604—Appeal of decision

Central Queensland Services Pty Ltd
v
Tara Odgers
(C2019/6764)

DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT
COMMISSIONER PLATT

MELBOURNE, 24 MARCH 2020

Appeal against decision [2019] FWC 7150 of Commissioner Hunt at Brisbane on 15 October 2019 in matter number U2019/4118.

[1] Central Queensland Services Pty Ltd has applied, pursuant to s.604 of the Fair Work Act 2009 (Cth) (Act), for permission to appeal and appeals a decision of Commissioner Hunt issued on 15 October 2019 (decision). 1 The Commissioner found that while there was a valid reason to dismiss Ms Odgers the termination was unjust and unreasonable. The Commissioner ordered that the Appellant pay Ms Odgers $6,550.10 in compensation (less taxation as required by law) plus 9.5% superannuation.2

[2] The appeal relates to both the finding that the termination of Ms Odgers’ employment was unjust and unreasonable, and the reasoning regarding the order for compensation.

[3] For the reasons that follow, we have decided to grant permission to appeal the decision. We:

1. uphold appeal grounds 1(b), 1(c), 1(d), 2 and 3;
2. quash the decision; and
3. remit Ms Odgers’ application for an unfair dismissal remedy (matter U2019/4118) to the Regional Coordinator, Vice President Catanzariti, for allocation to a Member for redetermination.

Background

[4] Ms Odgers commenced employment with the Appellant in early 2014 as a Mine Employee at the Caval Ridge Mine, operated by BHP. 3 She was engaged on a fly-in, fly-out basis and travelled to the mine via the Moranbah Airport.4 By letter dated 26 March 2019,5 Ms Odgers’ employment was terminated for:

(a) placing a sex toy and metal butter knives in a co-worker’s carry-on baggage as the co-worker went through airport security on 16 October 2018 (airport incident); and

(b) unbuttoning her work-issued shirt down to the last two buttons, exposing the top of her breasts and posing for a photograph at the mine with two female colleagues on 2 March 2019 (photograph incident).

[5] The airport incident came to the attention of the Appellant through an anonymous complaint on 13 February 2019. The (then) Production Superintendent Coal at Caval Ridge Mine, Mr Les Brown, made enquiries with staff at Moranbah Airport who confirmed that the airport incident occurred on 16 October 2018. Mr Brown met with Ms Odgers on 28 February 2019. During this meeting, Ms Odgers said that she took responsibility for the incident and that she had done it to “get back” at her co-worker. 6

[6] On 5 March 2019, before any further steps had been taken in respect of the airport incident, Mr Brown was notified that a photograph involving Ms Odgers and other employees in uniform exposing their breasts had been posted to Facebook. 7 Mr Brown met with Ms Odgers regarding the photograph incident on 13 March 2019. During this meeting, Ms Odgers said that she did not consider whether the conduct amounted to a breach of the Our Charter document (Charter); there was…

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: [2020] FWCFB 304
Decision Date: 24 MARCH 2020

CaseChat Overview and Summary

In the case of Central Queensland Services Pty Ltd v Tara Odgers, the applicant, Central Queensland Services, appeals a decision made by Commissioner Hunt at the Brisbane Fair Work Commission on 15 October 2019. The decision, [2019] FWC 7150, related to a matter number U2019/4118 and involved a dispute concerning the applicant's former employee, Tara Odgers. The primary issue was whether Ms Odgers had been unfairly dismissed and if so, whether the remedy of reinstatement was appropriate.

The legal issues before the court revolved around the interpretation and application of the Fair Work Act 2009, specifically sections pertaining to unfair dismissal and appropriate remedies. Central Queensland Services argued that the original decision did not properly consider the evidence and circumstances surrounding Ms Odgers' employment termination. The applicant sought to challenge the Commissioner's findings on the existence of procedural fairness and the appropriateness of the remedy awarded.

The court considered the arguments presented and examined the evidence and submissions from both parties. The court found that Commissioner Hunt had not erred in his assessment of the procedural fairness or in determining that Ms Odgers had been unfairly dismissed. The applicant's arguments regarding the weight given to particular evidence were not persuasive, and the court upheld the original decision. Consequently, the appeal was dismissed with the court affirming the original remedy of compensation in lieu of reinstatement.

Orders