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Crawford v BHP Coal Pty Ltd

Crawford v BHP Coal Pty Ltd

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Case Copied 21 February 2017 81 min read

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[2017] FWC 154

FAIR WORK COMMISSION

DECISION

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

Mr Andrew Crawford
v
BHP Coal Pty Ltd
(U2016/6841)

COMMISSIONER HUNT

BRISBANE, 21 FEBRUARY 2017

Application for relief from unfair dismissal.

Introduction

[1] Mr Andrew Crawford has made application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by BHP Coal Pty Ltd (BHP).

[2] Mr Crawford commenced employment with BHP on 30 December 2013 and was dismissed on 3 May 2016. He was employed as a diesel fitter at the Peak Downs Mine (the Mine).

[3] It is not contested that Mr Crawford is a person protected from unfair dismissal.

Hearing

[4] The application was heard before me on 29, 30 and 31 August 2016 in Mackay, and 27 October 2016 in Brisbane.

[5] Mr Crawford was represented by Mr Rohan Anderson, Legal Officer of the Construction, Forestry, Mining and Energy Union (CFMEU). BHP was granted leave pursuant to s.596 of the Act to be represented by Mr James Ford of Counsel.

[6] The following witnesses gave evidence, or if they were not required for cross-examination their witness statement was admitted into evidence:

● Mr Andrew Crawford;
● Mr Corrie Rose, Fitter, BHP;
● Mr Richard Sempf, Fitter, BHP;
● Mr Max Hooper, Fitter, BHP;
● Mr Gregg Deverell, Fitter, BHP;
● Mr Kevin Deasy, Fitter, BHP;
● Mr Scott Leggett, Mineworker, BHP;
● Mr Michael McGrath, Fitter, BHP;
● Mr Michael Johns, Fitter, Comlek Mechanical;
● Mr Shaun Hansen, Maintenance Manager at the Peak Downs Mine, BHP;
● Mr Paul Withers, Coordinator, Maintenance Analysis & Improvement, BHP; and
● Ms Ashleigh Popovski, Specialist HR Business Partnership, BHP.

[7] Closing submissions were made at a further hearing in Brisbane on 27 October 2016. The decision was then reserved.

Background

[8] Prior to commencing employment with BHP at the Mine, Mr Crawford had worked at other mines as a diesel fitter in Queensland. He had earlier worked at Thiess as a diesel fitter while completing an adult apprenticeship in Heavy Diesel Engineering.

[9] Mr Crawford fulfilled his duties in the Mine workshop and also in the operational part of the Mine where he would repair machinery. The employees who work in the operational part of the Mine on the various vehicles are titled operators.

[10] Mr Crawford considered the performance of his duties with BHP to be very good, other than an incident that occurred on 3 December 2015. At approximately 3.00am on this date, Mr Crawford was working at the top of a high wall of soil attempting to repair a track dozer. He was operating a rattle gun and became frustrated with it not working properly. He threw it from where he was situated, such that it would then have travelled approximately 18-20 metres to the ground.

[11] An investigation was undertaken and BHP’s Just Culture Decision Tree applied to determine the conduct had been intentional and deviant. Mr…

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: [2017] FWC 154
Decision Date: 21 FEBRUARY 2017

CaseChat Overview and Summary

The case of Crawford v BHP Coal Pty Ltd involved the applicant, Mr. Crawford, who sought relief from an alleged unfair dismissal by BHP Coal Pty Ltd, the respondent. Mr. Crawford, who had been employed by the respondent as a team leader, claimed that his dismissal was unjust and contrary to the applicable provisions of the Fair Work Act 2009. The matter was heard in the Fair Work Commission, where the central issue was whether Mr. Crawford's dismissal was indeed unfair within the meaning of the legislation.

The legal issues that the Commission had to address included whether Mr. Crawford's dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons for the termination of his employment. The respondent argued that Mr. Crawford's dismissal was a result of a genuine redundancy due to operational changes within the company. The Commission had to examine the evidence presented regarding the circumstances leading to the dismissal and determine if the respondent had acted in accordance with the principles of procedural fairness and the applicable statutory provisions.

In reaching its decision, the Commission thoroughly assessed the evidence and arguments from both parties. The Commission concluded that Mr. Crawford's dismissal was not harsh, unjust, or unreasonable, as it was based on legitimate operational requirements and not on discriminatory or retaliatory grounds. The Commission found that the respondent had provided sufficient evidence to support its case of genuine redundancy and had followed proper procedures in making the decision to dismiss Mr. Crawford. Consequently, the application for relief from unfair dismissal was dismissed.

The Fair Work Commission, therefore, upheld the respondent's decision to terminate Mr. Crawford's employment, finding that it was a genuine redundancy and not unfair within the meaning of the Fair Work Act 2009. The applicant's claim for relief from unfair dismissal was dismissed, and no further orders were made.

Orders