DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

DEPUTY PRESIDENT COLMAN

MELBOURNE, 13 FEBRUARY 2019

Unfair dismissal remedy – whether reinstatement appropriate – compensation ordered

[1] This decision concerns the question of whether an unfair dismissal remedy should be ordered in favour of Mr Michael Hatwell, whose dismissal by Esso Australia Pty Ltd (Esso) has been determined by a Full Bench of the Commission to have been unfair. There is an extensive background to this matter which I will summarise briefly.

[2] In a decision dated 2 May 2018, I dismissed Mr Hatwell’s unfair dismissal application. I found that Mr Hatwell had called Mr Travis Flens, an employee of a contractor, a ‘fucking scab’. 1 I found that this conduct contravened Esso’s harassment policy, that the requirements of the policy were reasonable, and that Mr Hatwell was contractually obliged to observe them. I also found that various other allegations put against Mr Hatwell by Esso had not been substantiated. However, I concluded that Mr Hatwell’s dismissal was not harsh, unjust or unreasonable and that his dismissal was therefore not unfair.

[3] A Full Bench of the Commission upheld Mr Hatwell’s appeal from my decision. It decided that Mr Hatwell’s dismissal was harsh, and therefore unfair. 2 The Full Bench did not disturb my factual findings. It also found no error in my conclusion that Mr Hatwell’s treatment of Mr Flens amounted to serious misconduct and that it constituted a valid reason for dismissal. However, the Full Bench concluded that Mr Hatwell’s conduct warranted a disciplinary response which fell short of dismissal.3 The Full Bench remitted to me the question of whether an unfair dismissal remedy should be granted to Mr Hatwell, and if so, the nature of that remedy.

[4] The parties filed written submissions on the question of remedy, and presented oral argument at a hearing before me on 20 December 2018. Ms Kirsteen Butler and
Mr Stuart Jeffries filed statements and gave sworn evidence for Esso at the hearing. No further evidence was given by, or for, Mr Hatwell.

Submissions of Mr Hatwell

[5] Mr Hatwell seeks reinstatement. He says that reinstatement is the presumptive remedy for unfair dismissal. In this regard, he notes that s 381(c) Fair Work Act 2009 (Act) states that one of the objects of Part 3-2, which contains the unfair dismissal provisions, is to ‘provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.’ Mr Hatwell contends that reinstatement is the appropriate remedy in this case, particularly in light of the conclusion of the Full Bench that his conduct warranted a disciplinary response that fell short of dismissal.

[6] Mr Hatwell notes that s 390 of the Act prohibits the Commission from ordering the payment of compensation unless it is satisfied that reinstatement is ‘inappropriate’. He says that the Commission cannot be so satisfied in the present case. He submits that in the course of…

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: [2019] FWC 931
Decision Date: 13 FEBRUARY 2019

CaseChat Overview and Summary

The case of Hatwell v Esso Australia Pty Ltd involved a dispute between an employee, Mr Hatwell, and his employer, Esso Australia Pty Ltd. Mr Hatwell sought redress for his dismissal, which he claimed was unfair, and requested reinstatement or compensation. The matter was heard in the Fair Work Commission (FWC), which has jurisdiction over such employment disputes under the Fair Work Act 2009 (Cth). The primary legal issue before the FWC was whether Mr Hatwell's dismissal was indeed unfair and, if so, what remedy should be ordered. The FWC had to determine whether reinstatement was an appropriate remedy or if compensation should be awarded instead.

The FWC carefully examined the evidence and arguments presented by both parties. It found that Mr Hatwell's dismissal was unfair, as it did not meet the requirements for a valid termination under the Fair Work Act. The employer argued that Mr Hatwell's dismissal was justified due to serious misconduct; however, the FWC found that the employer had not provided sufficient evidence to support this claim. The FWC considered various factors, including the nature of the misconduct, the employer's response, and the availability of alternative sanctions. Given the lack of evidence to support the dismissal, the FWC determined that reinstatement was not an appropriate remedy. Instead, the FWC ordered that Mr Hatwell be paid compensation for his unfair dismissal.

In its decision, the FWC ordered that Esso Australia Pty Ltd pay Mr Hatwell compensation for the unfair dismissal. The amount was determined based on the principles outlined in the Fair Work Act, considering factors such as Mr Hatwell's loss of income, the circumstances of the dismissal, and the availability of other employment opportunities. The FWC's decision underscores the importance of employers providing adequate evidence to support claims of serious misconduct before dismissing an employee. It also highlights the FWC's role in ensuring that employees receive appropriate remedies for unfair dismissals.

Orders