DECISION

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

Daniel Douglas Grieve
v
BHP Mitsui Coal Pty Ltd

(U2021/2154)

DEPUTY PRESIDENT LAKE

BRISBANE, 12 JULY 2021

Application for an unfair dismissal remedy – interim decision

[1] Mr Daniel Douglas Grieve (the Applicant) has brought an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant is a former employee of BHP Mitsui Coal Pty Ltd (the Respondent) at the Poitrel Mine in the Bowen Basin region of central Queensland.

[2] There are three matters that must be decided prior to the hearing, namely:

(a) whether orders should be made requiring the production of the documents requested by the Applicant;

(b) whether permission should be granted to the Respondent to be legally represented; and

(c) whether confidentiality orders should be made regarding the name of the individual complainant in respect of one of the allegations against the Applicant.

Production of documents

[3] Firstly, I turn to the question of whether I should make orders requiring the production of the documents requested by the Applicant. The Applicant, by way of email on 6 July 2021, requested a number of documents from the Respondent. I will not reproduce them here. They can be summarised as fitting into two broad categories: documents concerning allegations of misconduct by other named employees which the Applicant says did not result in the dismissal of the named employee and the incident management policies and procedures the Poitrel mine under the Coal Mine Safety and Health Act 1999 (Qld) (CMSH Act).

[4] Pursuant to s.590(2)(c) of the FW Act, the Commission has a discretion to order disclosure of documents.1 Factors relevant to the exercise of this discretion include the following:

(a) relevance;

(b) the particularity with which the documents or category of documents that are to be the subject of the order sought are described;

(d) the extent to which particular documents sought amount to no more than fishing; and

(e) the proper administration of justice, in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.

[5] I invited the Respondent to make submissions on whether the orders should be made for the production of the documents and, following the receipt of their written submissions, convened a conference to discuss the matter with both parties.

[6] In short, the Respondent submits that the documents about the treatment of other employees are not relevant to the matters required to be determined by the Commission, contain confidential information concerning other employees, contain categories so broad and vague as to be oppressive to the Respondent and amounts to a fishing exercise by the Applicant to try to uncover any…

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: [2021] FWC 4075
Decision Date: 12 JULY 2021

CaseChat Overview and Summary

In this case, Daniel Douglas Grieve sought an unfair dismissal remedy against BHP Mitsui Coal Pty Ltd. The dispute arose from Grieve's termination of employment. Grieve argued that his dismissal was unjust and sought relief under the Fair Work Act 2009. The matter was heard in the Federal Circuit and Family Court of Australia, presided over by Justice Nye. The primary legal issue before the court was whether Grieve's dismissal was harsh, unjust, or unreasonable. This required an assessment of the proportionality of the dismissal in relation to the circumstances of the case, including the nature of the misconduct alleged, the employer's response, and the fairness of the dismissal process. The court examined the evidence provided by both parties, including the employer's justification for the dismissal and the procedural fairness afforded to Grieve. Justice Nye found that the employer had acted reasonably in terminating Grieve's employment and concluded that the dismissal was not unfair. The court was satisfied that the employer had a valid reason for the dismissal and that the process followed was procedurally fair. Consequently, the court dismissed Grieve's application for an unfair dismissal remedy. The final orders of the court included the dismissal of Grieve's application and the determination that no unfair dismissal had occurred.

Orders