Eljazzar v BHP Iron Ore Pty Ltd

The dispute arose between an employee and the employer, the employee seeking to challenge his termination on the grounds of unfairness. The case was heard in the Fair Work Commission. The legal issues that the Commission had to address included whether the termination of the employee was harsh, unjust or unreasonable, and whether the proceedings brought by the union were res judicata or gave rise to issue estoppel.

In addressing the first issue, the Commission found that the employer had established that the termination was for a valid reason, as the employee was found to have engaged in misconduct. However, the Commission then considered whether the termination was harsh, unjust or unreasonable in the circumstances. The Commission found that the employer had failed to consider the employee's level of experience, the absence of a prior warning, and the employee's good work record. The Commission concluded that the termination was harsh, unjust or unreasonable, and thus unlawful.

Regarding the second issue, the Commission found that the union's proceedings did not give rise to issue estoppel or res judicata as the union was not a party to the proceedings, and the interests of the union and the employee were not identical. The Commission held that the union's proceedings did not prevent the employee from bringing his own proceedings.

The Commission ordered that the termination be set aside and that the employee be reinstated to his position with back pay. The employer was also ordered to pay the employee's legal costs.