[2014] FWC 1712 [Note: An appeal pursuant to s.604 (C2014/3771) was lodged against this decision - refer to Full Bench decision dated 17 June 2014 [[2014] FWCFB 3027] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Darrin Grant
v
BHP Coal Pty Ltd
(U2013/10299)

COMMISSIONER SPENCER

BRISBANE, 14 MARCH 2014

Application for relief from unfair dismissal - medical injury - direction to attend for functional assessment - power to direct - lawful or unreasonable direction

[1] This decision relates to an application filed in the Fair Work Commission (the Commission) by Mr Darrin Grant (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act). The application alleges that the Applicant was unfairly dismissed from his employment, by BHP Coal Pty Ltd (the Respondent).

[2] The application was the subject of conciliation before a Fair Work Commission Conciliator but was unable to be resolved.

[3] The matter was further allocated to the Commission, as presently constituted, for formal Arbitration.

[4] Directions for the filing of material and evidence were issued. Further directions were set for the filing of final submissions. The evidentiary case of both parties was heard over two days at the Mackay Courthouse. By consent, the matter was relisted for closing submissions in Brisbane, after the parties had the benefit of transcript in the matter.

[5] The Applicant was represented by Mr A Slevin, of Counsel, instructed by Mr C Newman, Legal Officer of the Construction, Forestry, Mining and Energy Union (the CFMEU). The Respondent was represented by Mr S Meehan, of Counsel, instructed by Ms T Gillies, Senior Associate of Ashurst Australia.

[6] While not all of the evidence and submissions in this matter have been referred to all of such have been considered.

Background

[7] The Applicant was employed by the Respondent as a boilermaker at the Peak Downs Mine (the Mine). The Applicant commenced employment on 25 November 2003, and continued in such until his dismissal on 17 May 2013. The Applicant was employed for approximately 9.5 years. At the time of his dismissal the Applicant was an area delegate for the CFMEU of the field crew (maintenance) at the Mine.

[8] On or about 21 October 2011 the Applicant sustained an injury to his right shoulder while undertaking his duties at the Mine. The Applicant completed light duties for the remainder of the shift on this day.

[9] Between October 2011 and July 2012 the Applicant “reinjured” his shoulder on a “number of occasions” which the Applicant stated occurred both during, and outside, work hours.

[10] In July 2012 the Applicant again reinjured his shoulder while mowing the lawn, outside work hours. Since about 23 July 2012 the Applicant has been on extended sick leave while receiving treatment regarding his shoulder injury. After consulting medical specialists, the Applicant underwent shoulder stabilisation surgery on 12 September 2012. The Applicant had not attended at work in the intervening period between…

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: [2014] FWC 1712
Decision Date: 14 MARCH 2014

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Grant, a former employee of BHP Coal Pty Ltd, for relief from an unfair dismissal. The dispute arose from an incident where Grant sustained an injury at work, leading to his dismissal on the basis that he was unable to perform his job duties. The crux of the matter was whether the company's direction for Grant to attend a functional capacity assessment, which he refused, was lawful or unreasonable, thereby impacting the fairness of his dismissal. The Fair Work Commission was tasked with determining the validity of the company's direction and its implications on the dismissal.

The central legal issue revolved around the company's authority to direct the employee to undergo a functional capacity assessment and whether such a direction was lawful. The Commission needed to assess whether the direction was within the scope of the employer's powers and whether it was reasonable in the circumstances. Additionally, the fairness of the dismissal in light of the employee's refusal to comply with the direction was examined.

In its reasoning, the Commission concluded that the employer had the power to direct the employee to attend for a functional capacity assessment, as it was necessary to determine the employee's fitness for work. The assessment was deemed relevant and reasonable given the nature of the injury and the job requirements. The Commission found that the refusal to attend the assessment contributed to the overall fairness of the dismissal decision. Consequently, the application for relief from unfair dismissal was dismissed, as the employer's decision was deemed fair and within its legal rights. The Commission's decision underscored the importance of compliance with employer directions in the context of medical injuries and job performance.

Orders