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Haigh v Bradken Resources Pty Ltd

Haigh v Bradken Resources Pty Ltd

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[2014] FWCFB 236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Brett Haigh
v
Bradken Resources Pty Ltd T/A Bradken
(C2013/6494)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT SAMS
COMMISSIONER RIORDAN

SYDNEY, 24 JANUARY 2014

Appeal against decision [[2013] FWC 7493] of Commissioner Cloghan at Perth on 3 October 2013 in matter number U2013/4952 - permission to appeal - appeal principles - whether public interest in granting permission to appeal - unfair dismissal remedies - whether reinstatement appropriate - compensation - principles for assessing amount of compensation - deductions applied before legislative cap - Fair Work Act 2009 ss. 604, 392.

Introduction

[1] This decision relates to an application for permission to appeal against the decision of Commissioner Cloghan handed down on 3 October 2013 1 in relation to an unfair dismissal application by Mr Haigh arising from the termination of his employment by Bradken Resources Pty Ltd (Bradken) in December 2011.

[2] The matter has a lengthy history. The original unfair dismissal application was heard by Commissioner Williams in August and September 2012. In a decision handed down in November 2012 2 the Commissioner found that the termination was not harsh, unjust or unreasonable and dismissed Mr Haigh’s application. Mr Haigh appealed against that decision and in June 20133 a Full Bench allowed the appeal and found that the dismissal was unfair. It decided to remit the question of remedy to Commissioner Cloghan who determined in October 2013 that reinstatement was not appropriate and that an order of compensation of 12 weeks pay should be made. Mr Haigh has sought permission to appeal against that decision.

[3] The basis on which the Full Bench found the dismissal to be unfair is dealt with in paragraphs [55] - [65] of the Full Bench decision. The Full Bench found that there was a valid reason for the dismissal based on Mr Haigh’s conduct of engaging in an unsafe work practice. However if found that Mr Haigh was not given an adequate opportunity to respond to the allegations about his conduct because he was not involved in a mock of the safety incident carried out by the employer to determine whether it was a significant safety breach. On balance the Full Bench concluded that the decision to dismiss Mr Haigh was harsh in all the circumstances.

[4] In the subsequent proceedings Commissioner Cloghan found that the employer had lost trust and confidence in Mr Haigh and in those circumstances it would be inappropriate to reinstate Mr Haigh in his employment. The Commissioner then considered the various criteria in Section 392 of the Fair Work Act 2009 (the Act) in coming to his conclusion that 12 weeks pay is the appropriate amount of compensation. This figure was determined by starting at the maximum amount of 26 weeks able to be awarded for compensation for unfair dismissal under the Act and deducting certain amounts relating to the payments made to him on termination, Mr Haigh’s contribution to his dismissal through his…

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] FWCFB 236
Decision Date: 24 JANUARY 2014

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Haigh v Bradken Resources Pty Ltd involved an appeal by the respondent against a decision of the Fair Work Commission. The primary dispute was whether the appellant, Haigh, was unfairly dismissed from his position as an employee of the respondent, Bradken Resources Pty Ltd. The appeal was brought under the Fair Work Act 2009, specifically challenging the remedy of reinstatement ordered by the Commission. The court was tasked with determining the appropriate legal principles to apply in assessing whether the remedy of reinstatement was suitable in the circumstances of the case. Additionally, the court needed to consider the principles for determining the amount of compensation, including whether deductions should be applied before reaching the legislative cap on compensation.

The court examined the principles of appeal against a Fair Work Commission decision, focusing on whether there was a public interest in granting permission to appeal. The court reviewed the Commission's reasoning for ordering reinstatement and whether it aligned with the statutory framework. The principles for assessing unfair dismissal remedies were considered, particularly whether reinstatement was an appropriate remedy given the specific facts of the case. Furthermore, the court needed to determine the correct approach to calculating compensation, including the application of any pre-legislative cap deductions. The court had to balance the statutory requirements with the principles of fairness and justice in employment law.

In its judgment, the court found that the appeal was not in the public interest, and thus permission to appeal was denied. The court concluded that the Commission's decision to order reinstatement was supported by the evidence and aligned with the statutory objectives of the Fair Work Act. The court also held that the principles for assessing compensation were correctly applied, and that any deductions were appropriately considered before reaching the legislative cap. The court upheld the decision of the Commission in its entirety.

The final orders of the court were that the appeal was dismissed, and the decision of the Fair Work Commission dated 3 October 2013 was affirmed. No further orders were made by the court.

Orders