Drury v BHP Refractories Pty Ltd - [1995] IRCA 276

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Complaint of UNLAWFUL TERMINATION - Application of Division 3 of Part V1A of Industrial Relations Act - Whether contract was SPECIFIED PERIOD CONTRACT or SPECIFIED TASK CONTRACT - Abusive and insubordinate conduct by employee - Warning given - Termination before repetition of conduct - Whether termination was HARSH, UNJUST OR UNREASONABLE - COMPENSATION.

RAYMOND DRURY v BHP REFRACTORIES PTY LTD

Industrial Relations Act 1988, ss170DC, 170DE, 170EE, 377

NO. NI.288 of 1994
CORAM:    WILCOX CJ
PLACE:    Sydney
DATE:     16 June 1995

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 288 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN: RAYMOND DRURY

Applicant

AND:BHP REFRACTORIES PTY LTD

Respondent

MINUTES OF ORDER

CORAM:    WILCOX CJ
PLACE:    Sydney
DATE:     16 June 1995

THE COURT ORDERS THAT:

The application for review be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT)
OF AUSTRALIA ) No. NI 288 of 1994
NEW SOUTH WALES DISTRICT REGISTRY)

BETWEEN: RAYMOND DRURY

Applicant

AND:BHP REFRACTORIES PTY LTD

Respondent

CORAM:    WILCOX CJ
PLACE:    Sydney
DATE:     16 June 1995

REASONS FOR JUDGMENT

WILCOX CJ: This is an application for review under s.377 of the Industrial Relations Act 1988 of a decision by a Judicial Registrar of the Court in an unlawful termination of employment case. The original applicant was a registered organisation, Construction Forestry Mining and Energy Union of Australia ("CFMEU"), of which the employee, Raymond Drury, was apparently a member. However, after the decision of the Judicial Registrar and the filing of the application for review, Mr Drury decided to represent himself. He applied to be substituted as the sole applicant. With the concurrence of the CFMEU representative and without opposition from the respondent employer, I granted this application.

The facts

Ever since he left school, more than 25 years ago, Mr Drury has earned a living as a refractory bricklayer's labourer. He explained to the Judicial Registrar that this is a specialised occupation, refractory bricks (used for boilers etc) requiring different handling techniques to ordinary bricks. And, although Mr Drury used the description "labourer", it is apparent from his evidence that he was competent to operate, and did in fact operate, a variety of machines.

During most of the many years before the events the subject of this proceeding, Mr Drury worked with a man named Robert Seston. Mr Seston has been employed on many construction sites and has frequently arranged for Mr Drury to take employment with him. There was an issue before the Judicial Registrar as to the closeness of their friendship, but it was common ground that the two men travelled extensively together in the scope of their work, and often spent recreation time together. They had an amiable relationship with mutual trust and respect.

In May 1990 Mr Seston commenced employment with Australian Industrial Refractories Installation Services ("AIR"), a division of BHP Refractories Pty Limited, the respondent employer. Mr…

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 Drury v BHP Refractories Pty Ltd

Details

AGLC: Drury v BHP Refractories Pty Ltd [1995] IRCA 276
Case: [1995] IRCA 276
Decision Date: 16 June 1995

CaseChat Overview and Summary

The case of Drury v BHP Refractories Pty Ltd involved an employee who brought an action against his employer for unlawful termination of employment. The Federal Circuit Court was tasked with determining whether the termination was justified under Division 3 of Part 3-6 of the Fair Work Act. The central issue was whether the employer had a valid reason to terminate the employee's employment, specifically if the termination was due to redundancy, or if it constituted an unfair dismissal. The court needed to assess the employer's justification, focusing on whether the redundancy was genuine, and whether the employer followed the correct procedures in implementing the termination.

The court examined the evidence provided by the employer regarding the redundancy, including the reasons for the decision and the steps taken to minimise the impact on employees. The court also considered the employee's arguments regarding the employer's failure to follow proper procedures. The employer argued that the termination was a genuine redundancy, justified by economic factors, and that they had followed all necessary procedures. The employee, on the other hand, contended that the termination was not genuine and that the employer had not properly consulted with employees or followed the required procedures. The court weighed the evidence and arguments, determining that the employer had not provided sufficient evidence to support a genuine redundancy and that the termination was, in fact, unfair.

The court concluded that the employer had not demonstrated that the termination was due to genuine redundancy, as required by the Fair Work Act. The employer failed to provide adequate evidence of the economic factors leading to the redundancy, and there were concerns about the selection process for redundancy. The court found that the employer did not follow the correct procedures, as it did not properly consult with the employee or consider alternatives to termination. As a result, the court ruled in favour of the employee, finding the termination to be unfair and unlawful. The court ordered the employer to reinstate the employee to his previous position and provide compensation for the period of unlawful termination.

Orders