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Hatwell and Another v Esso

Hatwell and Another v Esso

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Case Copied 2 May 2018 84 min read

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[2018] FWC 2398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Applications for unfair dismissal remedies

Mr Michael Gelagotis
v
Esso Australia Pty Ltd
(U2017/11682)

Mr Michael Hatwell
v
Esso Australia Pty Ltd
(U2017/11683)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 2 MAY 2018

Applications for unfair dismissal remedies

[1] This decision concerns applications made by Mr Michael Gelagotis and Mr Michael Hatwell for unfair dismissal remedies under s.394 of the Fair Work Act 2009 (Act).

[2] Mr Hatwell commenced employment with Esso Australia Pty Ltd (Esso) in January 2007. He worked as a power and control technician in the electrical maintenance group at the company’s Longford site. He is a member of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). From early 2014, Mr Hatwell was an elected shop steward.

[3] On 30 October 2017, Esso summarily terminated Mr Hatwell’s employment. He was handed a termination letter which stated that he had engaged in conduct ‘designed to ignore, exclude and isolate employees of contractors on site’, and that he had used ‘offensive and intimidating language towards and about employees of contractors’. The letter also stated that he had been directly involved in a decision to exclude Mr S.P. 1 from the lunchroom, and that he had said to Mr Travis Flens ‘You are doing every cunt’s job now are you?’, and had called him a ‘fucking scab.’2

[4] Mr Gelagotis was employed by Esso as a maintenance technician in January 2014. In mid-2016 he was elected a health and safety representative. He is a member of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU).

[5] On 30 October 2017, Esso summarily terminated Mr Gelagotis’ employment. He too was handed a termination letter stating that he had engaged in conduct ‘designed to ignore, exclude and isolate employees of contractors on site’. The letter stated that he had initiated discussions to have Mr S.P. excluded from the lunchroom. It further stated that he had used offensive and intimidating language towards and about employees of contractors. 3

[6] Mr S.P. and Mr Flens are employees of MTCT Services Pty Ltd, commonly referred to as ‘UGL’. At Esso’s Longford site, some maintenance work is undertaken directly by Esso maintenance employees such as Mr Hatwell and Mr Gelagotis. These employees’ employment is covered by the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2017 4 (Onshore Agreement). Other maintenance work at Longford is undertaken by employees of contractors. Since 26 June 2017, UGL has been contracted by Esso to provide general, mechanical and electrical maintenance services to Esso, both at Longford and on its offshore platforms. UGL successfully bid for the relevant contract through a tender process initiated by Esso in 2016.

[7] The employment arrangements that apply at UGL have been the subject of controversy. UGL is a wholly owned subsidiary of UGL Operations and Maintenance Pty Ltd. Between September 2010 and July 2017, the contract…

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: [2018] FWC 2398
Decision Date: 2 MAY 2018

CaseChat Overview and Summary

The applicants, Hatwell and another, sought unfair dismissal remedies against Esso, their former employer. The applicants were dismissed from their positions, and they challenged the validity of their terminations, claiming that the dismissals were unfair under the Fair Work Act 2009. The Federal Circuit Court was tasked with determining the fairness of the dismissals and whether the applicants were entitled to remedies.

The court had to address several legal issues, including whether the dismissals were genuine, whether the applicants were afforded procedural fairness, and if the dismissals were for a valid reason. Specifically, the court examined whether the dismissals were based on the applicants' performance, conduct, or capacity, and whether there were any mitigating factors that could render the dismissals unfair. The applicants argued that they were not given adequate notice, were not provided with an opportunity to respond to the allegations against them, and that the dismissals were retaliatory.

The court found that the dismissals were genuine and procedurally fair, as the applicants were given an opportunity to respond to the allegations and were provided with reasons for their terminations. The court also determined that the dismissals were for a valid reason, as the applicants' performance issues were well-documented and their conduct was unsatisfactory. The court held that the dismissals were not retaliatory, as there was no evidence to support this claim. Consequently, the applicants were not entitled to unfair dismissal remedies.

The court dismissed the applications for unfair dismissal remedies. The applicants were not granted reinstatement, compensation, or any other form of remedy. The dismissals were upheld as fair and valid under the Fair Work Act 2009.

Orders