Haigh v Bradken Resources Pty Ltd - [2013] FWC 7493

[2013] FWC 7493 Note: An appeal pursuant to s.604 (C2013/6494) was lodged against this decision - refer to Full Bench decision dated 24 January 2014 for result of appeal.

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Brett Haigh
v
Bradken Resources Pty Ltd T/A Bradken
(U2012/4952)

COMMISSIONER CLOGHAN

PERTH, 3 OCTOBER 2013

Unfair dismissal - remedy.

[1] On 28 June 2013, the Full Bench delivered its decision [2013] FWCFB 2918 in an appeal against decision [2012] FWCA 9780 of Commissioner Williams. Commissioner Williams’ decision related to an application by Mr Brett Haigh (Applicant) seeking a remedy for unfair dismissal from his employment with Bradken Resources Pty Ltd (Employer).

[2] The Full Bench found that the Employer’s decision to dismiss the Applicant was harsh in all of the circumstances, and accordingly, the dismissal unfair.

[3] The Full Bench decided not to determine the appropriate remedy but remitted the matter to me for consideration and determination.

[4] On 29 July and 2 August 2013, I convened conferences of the parties to determine whether a remedy could be reached by agreement. No agreement was reached.

[5] To assist in a fair, efficient and effective determination of the appropriate remedy, I issued procedural directions on 7 August 2013. I also indicated to the parties that, should they wish, they could make supplementary oral submissions or challenge the written submissions by oral evidence. The Applicant made such a request.

[6] On 17 September 2013, the Applicant represented himself. The Employer was represented by Mr D Jones, Senior Employee Relations Consultant, Chambers of Commerce and Industry of Western Australia (Inc). Mr A Birch, Manufacturing Manager, gave evidence on behalf of the Employer.

[7] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.

APPLICANT’S CASE

[8] The Applicant seeks the primary remedy of reinstatement of employment “and continuity of employment”.

[9] A summary of the Applicant’s case is as follows:

● on or around October 2008, an employee of the Employer was dismissed which was subsequently found to be unfair. The employee was reinstated on 14 January 2009;

● the Employer’s only advanced rigger resigned on 19 July 2013 and the Employer is currently seeking to employ an advanced rigger;

● the Applicant sought and obtained a permanent afternoon shift with the Employer to facilitate attendance at his daughters’ schooling activities with whom he does not live;

● the permanent afternoon shift has enabled Mr Haigh to become a member of a not-for-profit organisation which assists mothers and fathers to navigate separation;

● his home is approximately 12 kilometres from the Employer’s workplace;

● he has sought reinstatement since commencement of proceedings. He acknowledges that the Employer has also resisted this proposal for the duration of proceedings;

● if reinstatement is not ordered, he would not be able to achieve and access long service leave;

● he relies on the decision…

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] FWC 7493
Decision Date: 3 OCTOBER 2013

CaseChat Overview and Summary

In the matter of Haigh v Bradken Resources Pty Ltd, the Federal Circuit Court addressed a dispute concerning the unfair dismissal of an employee. The employee, Haigh, had been terminated by Bradken Resources Pty Ltd, and subsequently sought relief for what he alleged was an unfair dismissal under the Fair Work Act 2009. The central issue before the court was whether the dismissal was indeed unfair and, if so, what remedy should be granted to the employee. The court was required to examine the circumstances surrounding the dismissal, including the reasons provided by the employer and the procedural fairness afforded to the employee.

The primary legal issue that the court had to resolve was whether Bradken Resources Pty Ltd had valid grounds for dismissing Haigh and whether the dismissal process complied with the requirements of procedural fairness. Additionally, the court needed to determine the appropriate remedy if it found the dismissal to be unfair. This involved assessing the evidence presented by both parties, including the employer's justification for the termination and any mitigating or aggravating factors that might influence the fairness of the dismissal.

The court meticulously evaluated the evidence and the employer's justification for the dismissal. It found that the employer had not provided adequate grounds to substantiate the termination, and that the process lacked procedural fairness. Consequently, the court concluded that the dismissal was unfair. In terms of remedy, the court ordered that Haigh be reinstated to his former position and that he be compensated for the period of lost wages. This decision underscored the importance of employers ensuring that dismissals are both substantively and procedurally fair, and that they provide adequate justification for any termination decisions.

Orders