Colin Wright v AGL Loy Yang Pty Ltd - [2016] FWCFB 4818

[2016] FWCFB 4818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Colin Wright
v
AGL Loy Yang Pty Ltd
(C2016/1269)

DEPUTY PRESIDENT SAMS
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER SAUNDERS

SYDNEY, 2 AUGUST 2016

Appeal against decision [[2016] FWC 1941] of Vice President Watson at Melbourne on 11 May 2016 in matter number U2015/12039 – application of common law principles derived from criminal cases concerning admissions – appeal dismissed.

[1] Mr Colin Wright applied for permission to appeal against a decision 1 issued by Vice President Watson on 11 May 2016 (Decision). In that Decision the Vice President found that the termination of Mr Wright’s employment was not harsh, unjust or unreasonable within the meaning of s.387 of the Fair Work Act 2009 (Cth) (Act). The Vice President made an order2 dismissing Mr Wright’s unfair dismissal application.

[2] Mr Wright’s application for permission to appeal was heard by us on Tuesday, 12 July 2016 as part of a permission to appeal roster. At that time we granted permission to appeal. We heard the full appeal on Thursday, 14 July 2016.

[3] Having regard to the complexity of the issues raised in the appeal, we granted permission to the parties to be represented by legal practitioners pursuant to s.596(2)(a) of the Act. At the hearing of the appeal Mr Wright was represented by Mr M. Harding of counsel and AGL Loy Yang Pty Ltd (AGL) was represented by Mr D. Williams, solicitor.

Background

[4] Mr Wright was employed by AGL as a Level 8 Mine Operator at Loy Yang, a power station and coal mine in the Latrobe Valley. At the time of his dismissal Mr Wright had been employed at the power station and coal mine by various operators on a continuous basis for a period of about 30 years.

[5] Mr Wright concedes that he had a problem with drugs. He was caught using synthetic drugs in the workplace on two occasions. On the most recent of those occasions, 8 January 2015, Mr Wright was discovered in a toilet at work holding a smoking device. Mr Wright accepts that he had used the smoking device to smoke synthetic cannabis in the workplace. As a result of this incident, Mr Wright was issued with a final written warning on 29 January 2015. The final written warning required him to complete a residential drug and alcohol rehabilitation program for a minimum of 10 weeks, which he did, and informed him that a repeat of any incident of a similar nature may result in the termination of his employment. AGL paid the majority of the costs of the rehabilitation program.

[6] After Mr Wright completed the rehabilitation program, he signed a return to work program in which he acknowledged that any failure on his part to comply with the requirements of the plan may result in the termination of his employment.

[7] Mr Wright was involved in a car accident shortly after completing night shift on the morning of…

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.

Continue reading Colin Wright v AGL Loy Yang Pty Ltd

Details

AGLC: Colin Wright v AGL Loy Yang Pty Ltd [2016] FWCFB 4818
Case: [2016] FWCFB 4818
Decision Date: 2 AUGUST 2016

CaseChat Overview and Summary

Colin Wright appealed against a decision made by Vice President Watson of the Fair Work Commission, which was handed down on 11 May 2016 in Melbourne. The matter pertained to an application of common law principles derived from criminal cases concerning admissions. The appeal was dismissed. The dispute arose from a claim by Colin Wright against AGL Loy Yang Pty Ltd, concerning employment-related issues. The case was heard before the Fair Work Commission, a body that deals with workplace relations matters in Australia.

The central legal issue in this appeal was whether the principles derived from criminal cases concerning admissions could be applied to a Fair Work Commission proceeding. Specifically, the appeal questioned whether an admission made by Colin Wright in a document could be used against him, considering the context and circumstances of the case. The court had to decide if the common law principles concerning admissions were applicable and whether they should be extended to the Fair Work Commission's proceedings.

The Fair Work Commission considered the principles of common law as applied in criminal cases, focusing on the admissibility and effect of admissions made by a party. The court held that the principles derived from criminal cases were not necessarily inapplicable to Fair Work Commission proceedings. However, the court determined that the specific circumstances of the case required a nuanced application of these principles. Ultimately, the court found that the application of these principles in this instance did not lead to an unfair outcome for Colin Wright. Consequently, the appeal was dismissed, affirming the original decision.

Orders