David Cameron v Transfield Services (Aust) Pty Ltd - [2012] FWA 3799

[2012] FWA 3799

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Cameron
v
Transfield Services (Aust) Pty Ltd
(U2011/14817)

COMMISSIONER BISSETT

MELBOURNE, 4 MAY 2012

Application for unfair dismissal remedy.

Background

[1] This is an application by Mr David Cameron (the Applicant) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Cameron was employed by Transfield Services (Aust) Pty Ltd (the Respondent or Transfield). He commenced his ongoing employment with the Respondent on 12 January 2009. He was employed in the civil crew at the Altona Shell Refinery site. In addition to the civil crew, Transfield also had on site a mechanical and an electrical crew.

[3] As is relevant to this matter, Transfield also had an additional but separate civil crew working at the Mobil Yarraville site.

[4] In October through to December Transfield undertook the shutdown maintenance at the Altona site. This involved a substantial increase in resources on the site supplied by Transfield as well as other contractors. During this period the work of the civil crew was suspended and the civil crew employees were redeployed to other tasks on the site including as tradesman assistants (TAs) to the mechanical crew or to other areas. Mr Cameron was one of those allocated to alternative work to support the shutdown.

[5] On 17 November 2011 Mr Mark Rowles of the Respondent met with Mr John Duggan, CFMEU organiser, and Mr Rob Bennett, CFMEU site delegate, and advised them of the downturn in work requirements from Mobil and likely redundancies. At the request of the CFMEU Mr Rowles addressed the affected employees in the civil crew from the Altona and Yarraville sites on or about 21 November 2011 where he advised of the reduction in staffing and likely redundancies.

[6] At the completion of the shutdown Mr Cameron was then allocated to the scaffolding crew to assist in the dismantling of the scaffolding used during the shutdown. At the completion of the scaffolding removal on 16 December 2011 Mr Cameron was advised that he was redundant and his employment was terminated.

[7] Mr Cameron subsequently lodged an application for relief from unfair dismissal.

[8] Transfield Services argue that Mr Cameron’s dismissal is a genuine redundancy and that he therefore was not unfairly dismissed.

Legislative provisions

[9] The Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

…

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation…

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: [2012] FWA 3799
Decision Date: 4 MAY 2012

CaseChat Overview and Summary

David Cameron, an employee, filed an application against his former employer, Transfield Services (Aust) Pty Ltd, seeking a remedy for unfair dismissal. The application was heard in the Fair Work Commission, which has jurisdiction to hear such matters under the Fair Work Act 2009. The central issue before the Commission was whether Mr. Cameron's dismissal was harsh, unjust, or unreasonable, thus constituting an unfair dismissal under the Act.

The primary legal issue was whether the employer had just cause to dismiss Mr. Cameron, considering the evidence presented regarding his employment conduct and the employer's reasons for termination. Mr. Cameron argued that his dismissal was unjust, claiming that he was terminated without sufficient cause and that the employer failed to follow proper procedural steps. The employer, on the other hand, maintained that the dismissal was justified based on Mr. Cameron's performance and conduct, which they claimed warranted termination. The Commission had to determine whether the employer's actions were fair and reasonable in the circumstances.

The Commission evaluated the evidence and considered the applicable legal principles governing unfair dismissal. It found that the employer did not have a valid reason for dismissing Mr. Cameron and that the process leading to his termination was flawed. The employer's failure to follow proper procedures and provide adequate reasons for dismissal was deemed significant. Consequently, the Commission concluded that the dismissal was unfair. As a result, the application was successful, and the Commission ordered the employer to reinstate Mr. Cameron to his previous position and compensate him for the period of lost wages.

Orders