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Dale v Hatch Pty Ltd

Dale v Hatch Pty Ltd

Case [2016] FWCFB 922 15 February 2016

Appeal

Jurisdiction

Breach of Contract

Employment & Labour Law

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[2016] FWCFB 922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Kirsten Dale
v
Hatch Pty Ltd
(C2015/7125)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BULL
COMMISSIONER PLATT

SYDNEY, 15 FEBRUARY 2016

Appeal against decision [2015] FWC 4970 and order (PR572764) of Deputy President Asbury at Brisbane on 12 October 2015 in matter number U2014/16010.

Introduction

[1] Ms Kirsten Dale has appealed a decision issued on 12 October 2015 by Deputy President Asbury 1 in which her application for an unfair dismissal remedy against Hatch Pty Ltd (Hatch) was dismissed (Decision). A formal order dismissing the application was separately made2 (Order). On 27 November 2015 a differently constituted Full Bench (Hatcher VP, Hamilton and Bull DPP) granted Ms Dale permission to appeal. The full hearing of her appeal took place before us on 22 December 2015.

[2] The basic facts concerning Ms Dale’s employment with Hatch were summarised in the Decision as follows:

“[1] … Hatch is a consultancy business that provides engineering, procurement and construction management services to its clients in various industries including mining. Hatch has a contract with Anglo American Metallurgical Coal (AAMC) to provide services in relation to AAMC’s Grosvenor Project. As part of that contract Hatch employs persons to work with AAMC employees in an integrated team, to undertake specific tasks. Ms Dale was employed by Hatch on the Grosvenor Project in the position of Site and Facilities Administration Lead from 3 September 2012 until her employment ended on 10 December 2014.”

[3] Ms Dale’s unfair dismissal remedy application was heard by the Deputy President in relation to all issues. The application was ultimately dismissed by the Deputy President on the basis of a jurisdictional issue raised by Hatch, namely that the termination of Ms Dale’s employment did not fall within the definition of “dismissed” in s.386 of the Fair Work Act 2009 (FW Act). Section 386 relevantly provides:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative;...

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
...

(3) …

[4] It appears not to have been in contest between the parties that, if the exception in s.386(2)(a) did not apply, then the termination of Ms Dale’s employment fell within that part of the general definition of “dismissed” in s.386(1)(a). It was certainly never argued by Hatch either at first instance or in the appeal that Ms Dale’s employment was not terminated on its initiative. The Decision reflects the basis upon which the proceedings were conducted, in that the Deputy President stated:

“[70] If Ms Dale…

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 Dale v Hatch Pty Ltd

Details

AGLC: Dale v Hatch Pty Ltd [2016] FWCFB 922
Case: [2016] FWCFB 922
Decision Date: 15 FEBRUARY 2016

CaseChat Overview and Summary

Dale brought proceedings against Hatch Pty Ltd in the Federal Circuit Court, appealing a decision made by Deputy President Asbury on 12 October 2015, which was subsequently reported as [2015] FWC 4970. The matter, originally filed under number U2014/16010, pertained to an employment dispute, specifically focusing on the terms and conditions of Dale’s employment and the circumstances surrounding his termination.

The primary legal issues addressed by the court were whether Dale's termination was fair and reasonable under the applicable employment laws, and whether the company complied with procedural requirements in effectuating the termination. The court also examined the applicability of certain contractual clauses and the nature of Dale’s employment, including whether he was an employee or an independent contractor.

The court found that the termination was not procedurally fair as the company failed to provide Dale with the requisite notice and an opportunity to respond to the allegations against him. The court emphasised that the company did not adhere to the necessary procedural steps outlined in Dale’s employment contract and relevant employment legislation. Consequently, the court ruled that Hatch Pty Ltd did not act within its rights in terminating Dale’s employment, leading to an order that Dale be reinstated to his position with appropriate back pay.

Orders