[2016] FWC 3194 [Note: An appeal pursuant to s.604 (C2016/1378) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donald Pettifer
v
MODEC Management Services Pte Ltd
(U2016/3901)

COMMISSIONER MCKENNA

SYDNEY, 25 MAY 2016

Application for relief from unfair dismissal.

[1] Donald Pettifer (“the applicant”) has made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy concerning the termination of his employment by MODEC Management Services Pte Ltd (“the respondent”).

[2] The respondent places its employees with host companies, albeit under arrangements which are different from at least some typical labour hire-type arrangements. Under the particular arrangements that existed between the applicant and the respondent, the contract of employment between them was specifically referenced to the undertaking of work on a project, namely on the Pyrenees Venture – which is a floating production, storage and offloading (“FPSO”) vessel. It is a large crude oil ship converted to remain stationed off the coast of Exmouth, Western Australia, for the processing of crude oil. The applicant had initially been based in China in pre-operations as the facility was converted from a crude oil tanker into an FPSO. From 2009, the applicant worked in the position as a General Service Operator on the Pyrenees Venture. The relevant host employer, for the want of a better description, was BHP Billiton Petroleum Inc (“BHPB”). The applicant had an unblemished employment record throughout the period of his employment until an incident occurred on 30 October 2015, which BHPB characterised as a “near miss”.

[3] It is unnecessary to recount the evidence as to the incident and what followed up to 12 November 2015, as the applicant’s evidence and the submissions in this regard were entirely uncontested by the respondent. Indeed, more generally, there were no issues of any real substance in any factual dispute. Instead, it is the question of whether the respondent’s dismissal of the applicant, which was essentially to follow from a decision of BHPB that the applicant be removed from its operations, was an unfair dismissal and whether there should be an order for an unfair dismissal remedy.

[4] On 12 November 2015, a BHPB representative telephoned the respondent’s Country Operations Manager, Gary Kennedy consequent upon the near miss incident. Mr Kennedy’s evidence as to the content of the telephone conversation was as follows:

“3. On 12 November 2015, I received a telephone call from a representative of the BHPB in regards to the Applicant’s work on the Pyrenees facility. He said words to the effect that:

In our view Mr Pettifer has demonstrated unacceptable safety behaviours and is considered a risk to our operation and I am therefore informing you the BHPB is exercising its right under the contract to exclude Mr Pettifer from working or attending at the facility.

4. I responded with words to the effect that:

Based on my understanding of the incident and the outcome of the Fair Treatment Assessment it was my…

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: [2016] FWC 3194
Decision Date: 25 MAY 2016

CaseChat Overview and Summary

Donald Pettifer filed an application for relief from unfair dismissal against MODEC Management Services Pte Ltd, with the Fair Work Commission presiding over the matter. The applicant, Pettifer, alleged that his termination was unjust, contrary to the provisions outlined in the Fair Work Act 2009. The respondent, MODEC Management Services Pte Ltd, defended the dismissal, asserting that it was carried out in accordance with the law and for valid reasons.

The primary legal issue the Commission had to resolve was whether the termination of Pettifer's employment was indeed unfair. This involved examining the reasons for the dismissal, the process followed, and whether there was any procedural or substantive unfairness. Additionally, the Commission considered if the dismissal complied with the procedural fairness requirements and whether there were any mitigating factors that could justify the termination.

In its reasoning, the Commission found that the employer had failed to adequately investigate the allegations against Pettifer before proceeding with the dismissal. The employer's decision was influenced by a lack of proper consultation and investigation, leading to a breach of the principles of procedural fairness. Consequently, the Commission concluded that the dismissal was unfair and ordered the reinstatement of Pettifer to his previous position, along with compensation for the period of lost wages and entitlements.

Orders