Dewson v Boom Logistics Ltd - [2012] FWA 9027

[2012] FWA 9027

FAIR WORK AUSTRALIA

DECISION

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

Mr Zeb Dewson
v
Boom Logistics Ltd
(U2012/1190)

COMMISSIONER CAMBRIDGE

SYDNEY, 24 OCTOBER 2012

Unfair dismissal - misconduct - allegations of assault and workplace bullying - erroneous findings of assault - other serious misconduct - unacceptable workplace culture - significant procedural deficiencies - denial of natural justice - harsh, unjust and unreasonable dismissal – further proceedings to deal with remedy of compensation.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Brisbane on 22 May 2012. The application was made by Zeb Dewson (the applicant) and the respondent employer is Boom Logistics Ltd (the employer).

[2] The application indicated that the date of the applicant’s dismissal was 11 May 2012. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Brisbane on 10 and 11 September 2012.

[4] At the Hearing, Mr C Newman, a legal officer with the Construction, Forestry, Mining and Energy Union (CFMEU), appeared for the applicant. The applicant and three other witnesses were called to provide evidence in support of the claim. The employer was represented by Mr W Swain, who called a total of three witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant is a man of some 29 years of age and he had worked for the employer for about 6 and 1/2 years. The applicant was initially employed as a Dogman and he moved to the position of Crane Operator in 2007. The applicant’s employment was based in the Queensland town of Moranbah. At the time of his dismissal the applicant was Vice President of the local CFMEU Boom lodge.

[6] The employer is a national industrial services group that provides crane logistics and lifting solutions to Australian Industry. The employer has in excess of 1100 employees. In this instance the employer’s Moranbah operation predominantly provides services to the Coal Mining Industry.

[7] In about August 2011 the employer received a formal complaint from an employee engaged at Moranbah. The complainant made allegations of serious workplace harassment and associated matters including, inter alia, physical and verbal assault; destruction of personal property such as motor vehicle tyres being slashed; employees urinating in other employee’s boots; vilification and discrimination based on race, ethnicity, membership or otherwise of an industrial organisation, participation or otherwise in industrial activity; widespread drug use; concealment of serious workplace health and safety incidents; and nepotism.

[8] After an internal preliminary investigation the employer engaged an external consultant who investigated the allegations and completed a report in March 2012 which, in summary, concluded that “...a toxic work environment exists which poses an unacceptable risk…

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 9027
Decision Date: 24 OCTOBER 2012

CaseChat Overview and Summary

In the case of Dewson v Boom Logistics Ltd, the Fair Work Commission was tasked with determining whether the dismissal of Mr Dewson was unfair. Mr Dewson was employed by Boom Logistics Ltd and was dismissed following allegations of misconduct, including assault and workplace bullying. The decision of the Commission is noteworthy for its detailed examination of the evidence and procedural fairness issues, leading to a finding of unfair dismissal.

The primary legal issues before the Commission were whether the dismissal was related to misconduct, and if the dismissal process itself was fair and just. The Commission had to assess the credibility of the evidence and determine whether the employer had acted reasonably in dismissing Mr Dewson. It was also necessary to consider whether the employer had a valid reason for dismissal and whether the dismissal was proportionate to the misconduct.

The Commission found that while there were serious allegations of misconduct, the evidence did not support a finding that Mr Dewson had committed assault. However, the Commission did find that there were other instances of serious misconduct that warranted termination. The employer failed to provide Mr Dewson with a fair opportunity to respond to the allegations, which constituted a significant procedural deficiency. The Commission concluded that the dismissal was harsh, unjust and unreasonable due to these procedural failings and the overall unacceptable workplace culture at the company. The Commission decided that the matter should return to the tribunal to determine the appropriate remedy, including the question of compensation.

Orders