DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Grieve
v
BHP Mitsui Coal Pty Ltd
(U2021/2154)

DEPUTY PRESIDENT LAKE

BRISBANE, 14 SEPTEMBER 2021

Application for unfair dismissal remedy

[1] Mr Daniel Grieve (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by BHP Mitsui Coal Pty Ltd (the Respondent) at the Poitrel Mine in the Bowen Basin region of Central Queensland.

[2] The Applicant commenced employment with the Respondent on 14 August 2017 and was terminated on 21 February 2021 for misconduct. It is not in dispute that the application was made within time, the Applicant is protected from unfair dismissal, the Small Business Fair Dismissal Code does not apply and the dismissal did not involve a genuine redundancy. 1 The matter for determination is whether the Applicant’s dismissal was harsh, unjust or unreasonable.

[3] This matter was heard in Mackay on 19 July 2021. At the hearing, the Applicant was self-represented. Ms Amanda Coulthard of Counsel appeared for the Respondent, instructed by Herbert Smith Freehills. I was satisfied that leave should be granted for the Respondent, for reasons outlined in my decision of 12 July 2021. 2

APPLICANT’S MATERIAL

The Applicant’s evidence

[4] The Applicant prepared a written statement and gave evidence at the hearing. He stated that he commenced his working career in the mining industry, gaining a mechanical trade apprentice at 16 years of age, and then worked in several mining sectors before obtaining his NSW Open Cut Examiners (OCE) ticket in 2008. In 2012, he sat for the Queensland OCE ticket, and was deemed competent. In 2014, he relocated to Queensland and was involved in the reopening of Collinsville Coal Mine. In 2015, he began working for Mikala Mining at Poitrel Mine. Following his appointment as OCE and supervisor, he would fill either of these two roles, as needed. He was in the Senior Production Supervisor role in August 2017, when he took up a full time position at Poitrel for the Respondent. He continued to transition between Supervisor and OCE roles across the C & D crews.

[5] The Applicant said that during his employment at Poitrel, he witnessed mismanagement of safety incidents on several occasions, which had been reported or escalated to supervisors, OCE’s, superintendents and production managers. The Applicant stated that these incidents were “swept under the carpet” and that not attempts were made to learn from the incident. Consequently, the Applicant escalated the event to the Respondent’s Ethics Point, who encourage the reporting of such events.

[6] On the Sunday of his first swing back at work after making the Ethics Point report, the Applicant said his supervisor, Mr Luke Cooper, spoke with him and said he did not think the Applicant was okay. The Applicant said he was, but added that he was hating his job, as he…

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 Daniel Grieve v BHP Mitsui Coal Pty Ltd

Details

AGLC: Daniel Grieve v BHP Mitsui Coal Pty Ltd [2021] FWC 5913
Case: [2021] FWC 5913
Decision Date: 14 SEPTEMBER 2021

CaseChat Overview and Summary

The Federal Circuit Court of Australia was presented with a case where Daniel Grieve sought an unfair dismissal remedy against BHP Mitsui Coal Pty Ltd. Grieve, a former employee of the company, alleged that his termination was unjust and sought reinstatement or compensation. The central issue was whether the dismissal met the statutory criteria for unfair dismissal under the Fair Work Act 2009. Specifically, the court needed to determine if BHP Mitsui Coal could demonstrate that the dismissal was for a valid reason related to the employee's capacity or conduct.

The court meticulously reviewed the evidence presented by both parties, focusing on the reasons for the dismissal and the procedural fairness observed during the process. BHP Mitsui Coal argued that the dismissal was justified due to Grieve's conduct, which they claimed constituted gross misconduct. Conversely, Grieve maintained that the dismissal process was flawed and that the reasons provided were not valid. The court examined the fairness of the investigation, the evidence of misconduct, and whether BHP Mitsui Coal had followed its own policies and procedures in reaching the decision to terminate. The judge ultimately concluded that the dismissal was fair, as BHP Mitsui Coal had demonstrated a valid reason related to the employee's conduct. The evidence supported that the company had conducted a thorough investigation and followed its internal policies, which included multiple warnings and opportunities for improvement. The court found that the decision to terminate was not harsh, unjust, or unreasonable in the circumstances.

As a result of the court's decision, the application for an unfair dismissal remedy was dismissed. The judge ruled that BHP Mitsui Coal had adequately justified the dismissal, and Grieve was not entitled to reinstatement or compensation. The court emphasised the importance of employers adhering to fair procedures and providing clear evidence when making dismissal decisions.

Orders