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DP World Sydney Limited v Lambley

DP World Sydney Limited v Lambley

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[2013] FWCFB 9230

The attached document replaces the document previously issued with the above code on 22 November 2013.

This version corrects typographical errors, paragraph referencing errors and party name in paragraph [6].

Vanja Bulut

Associate to Vice President Catanzariti

Dated 27 November 2013

[2013] FWCFB 9230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

DP World Sydney Limited

Mr Stephen Lambley

(C2012/3296)

VICE PRESIDENT CATANZARITI
VICE PRESIDENT LAWLER
COMMISSIONER CAMBRIDGE

SYDNEY, 22 NOVEMBER 2013

Appeal against decision [[2012] FWA 1250] and order [PR521151] of Deputy President Sams at Sydney on 21 March 2012 in matter number U2011/10711. Rehearing of application for unfair dismissal remedy. Misconduct - fighting in breach of policy – whether dismissal harsh. Application dismissed.

REASONS FOR DECISION OF VICE PRESIDENT CATANZARITI AND COMMISSIONER CAMBRIDGE

[1] This is an appeal against a decision 1 of Deputy President Sams in relation to an application (Application) by Mr Stephen Lambley for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Application arose from the termination of Mr Lambley’s employment by DP World Sydney Limited (DP World) for serious misconduct. The Deputy President found that there was a valid reason for the dismissal however, in the circumstances, concluded that the dismissal was harsh and ordered that Mr Lambley be reinstated. A differently constituted Full Bench found that the Deputy President had erred and quashed the decision.2

[2] At the hearing of the appeal, before the reconstituted Full Bench, Mr S Crawshaw of Senior Counsel and Ms L Doust of Counsel with permission appeared for Mr Lambley and Mr I Taylor of Senior Counsel and Mr D Mehendra of Counsel with permission appeared for DP World.

Procedural history

[3] The Application was heard by the Deputy President in Sydney on 5 to 8 December 2011. On 21 March 2012, the Deputy President handed down a decision in favour of Mr Lambley, ordering that Mr Lambley be reinstated, that there be continuity of service and partial lost remuneration.

[4] DP World filed an appeal against that decision on 3 April 2012 and the appeal was heard by a differently constituted Full Bench on 1 June 2012. That Full Bench found that:

“[33] For the above reasons we consider that the Deputy President erred in the exercise of his discretion. As a result there has been an unjust result to Mr Lambley’s unfair dismissal application. In our view it is in the public interest that decisions in unfair dismissal matters are consistent with established principles and involve the sound exercise of the discretions vested in the tribunal. We therefore grant permission to appeal, allow the appeal and quash the decision of the Deputy President.”

[5] The decision of the first Full Bench was subsequently appealed to the Federal Court of Australia. On 10 January 2013, Katzmann J, in Lambley v DP World Sydney Limited [2013] FCA 4, found, at [50], that:

“...In the passages to…

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: [2013] FWCFB 9230
Decision Date: 22 NOVEMBER 2013

CaseChat Overview and Summary

DP World Sydney Limited appealed against the decision of the Fair Work Commission, which found that the dismissal of Mr Lambley was unfair. The dispute centred on Mr Lambley's involvement in a physical altercation with a colleague, which resulted in his dismissal from employment. The Fair Work Commission had ruled that Mr Lambley's dismissal was unfair and ordered reinstatement or compensation.

The legal issues for the court to decide included whether the dismissal was harsh, unjust, or unreasonable, and if there was a valid reason related to the employee's capacity or conduct. The primary focus was on whether the dismissal was proportionate to the misconduct and whether the employer had followed a fair process. The court also considered the employer's policy on fighting and whether the employee had a reasonable opportunity to respond to the allegations.

The court examined the evidence and arguments from both parties, focusing on the nature of the misconduct and the employer's response. The court found that the employer had a valid reason for dismissal due to the breach of policy and the physical altercation. The court concluded that the dismissal was not harsh, unjust, or unreasonable, as it was proportionate to the misconduct and the employer had followed a fair process. The appeal was successful, and the court dismissed the application for unfair dismissal remedy.

Orders