Colin Wright v AGL Loy Yang Pty Ltd

[2016] FWC 1941

[2016] FWC 1941 [Note: An appeal pursuant to s.604 (C2016/1269) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colin Wright
v
AGL Loy Yang Pty Ltd
(U2015/12039)

VICE PRESIDENT WATSON MELBOURNE, 11 MAY 2016

Application for relief from unfair dismissal – whether alleged conduct occurred – parties agreed on key factual dispute that will determine the application – Fair Work Act 2009, s.394.

Introduction

[1] This decision concerns an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Colin Wright in relation to the termination of his employment with AGL Loy Yang Pty Ltd (AGL).

[2] The matter proceeded by way of determinative conference on 1 March 2016. Mr M Harding of counsel appeared on behalf of Mr Wright and Mr D Williams of counsel appeared on behalf of AGL.

[3] At the determinative conference statements from the following persons were admitted into evidence:

• Mr Colin Wright



• Mr Ernest John Gilpin, Mr Wright’s Alcoholics Anonymous sponsor



• Mr Olaf Drummer, Qualified Forensic Pharmacologist and Toxicologist



• Mr Neil Waterhouse, Shift Manager on D roster, AGL Loy Yang Pty Ltd



• Mr Nigel Browne, Head of Mine, AGL Loy Yang Mine



• Mr Daniel Nelson, People & Culture Business Partner, AGL Loy Yang Pty Ltd



• Mr Nick Demetrious, Head of Security and Emergency Management of AGL enterprises within Australia



• Mr Tim Murnane, Mine Production Manager, AGL Loy Yang mine

[4] Mr Wright, Mr Nelson, Mr Demetrious and Mr Murnane were cross-examined. Constable David Ledgar, who was part of the police team investigating the accident involving Mr Wright on 27 August 2015, gave oral evidence and was cross-examined.

[5] At the conference the parties advised that had reached an agreement in relation to the key issue to be resolved and the implications of the outcome of that factual dispute for Mr Wright’s application. The parties agree that the key question for the Commission to determine is whether Mr Wright consumed synthetic cannabis prior to, or during, his journey from work on 27 August 2015, following the completion of his shift on that morning. Mr Wright has conceded that if this question is answered in the affirmative, his application must fail. AGL has conceded that if the question is answered in the negative, there would be no impediment to Mr Wright returning to work.

Background

[6] 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. He had been in that employment since August 2012 when AGL became the operator of Loy Yang A. However, at the time of the dismissal he had been continuously employed at the power station and coal mine by various operators of Loy Yang A for 30 years.

[7] Mr Wright’s duties included the operation of large mining plant including dredgers, bulldozers, stackers and conveyor systems. Further duties also included the operation of the control centre,…