Helensburugh Coal Pty Ltd v Bartley - [2021] FWCFB 2871

[2020] FWC 5756 [Note: This decision has been quashed - refer to Full Bench decision dated 19 May 2021 [2021] FWCFB 2871]

FAIR WORK COMMISSION

0BDECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Neil Bartley & Ors

v
Helensburgh Coal Pty Ltd

(U2020/9414) (U2020/9415) (U2020/9416) (U2020/9417) (U2020/9418) (U2020/9419) (U2020/9420) (U2020/9421) (U2020/9422) (U2020/9423) (U2020/9424) (U2020/9425) (U2020/9426) (U2020/9427) (U2020/9428) (U2020/9429) (U2020/9430) (U2020/9431) (U2020/9432) (U2020/9434) (U2020/9435) (U2020/9436) (U2020/9437) (U2020/9438)

COMMISSIONER RIORDAN

SYDNEY, 24 DECEMBER 2020

Application for an unfair dismissal remedy.

On 24 June 2020, Mr Neil Bartley, Mr Jake Bennett, Mr James Brajak, Mr Peter Burke, Mr Christopher Dale, Mr Kenneth Dryden, Mr Luke Duffy, Mr Leonard Farrance, Mr Stephen Gilmour, Mr Brendan Gornall, Mr Taylor Gosling, Mr Murray Gray, Mr Tim Henderson, Mr Joshua Hogg, Mr Stuart Kemp, Mr Clint Luck, Mr Ryan Martin, Mr James Mate, Mr Christopher Murdoch, Mr Gregory Remfry, Mr Ryan Schuster, Mr Boro Selak, Mr Simon Walder and Mr Alex Windisch (together the Applicants), were notified by their former employer Helensburgh Coal Pty Ltd (Peabody) (the Respondent), that their employment was to be terminated. Prior to their termination, the Applicants worked at the Respondent’s Metropolitan Coal Mine (the Mine) located in the Illawarra region of New South Wales.

On or about 10 July 2020, the Applicants filed applications (the Applications) with the Fair Work Commission (the Commission) for Unfair Dismissal remedies pursuant to section 394 of the Fair Work Act 2009 (the Act).

The Applicants were represented by Mr Adam Walkaden of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU). Pursuant to section 596 of the Act, the Respondent was granted permission to be represented by Mr Dan Williams of MinterEllison.

At the commencement of the Hearing, the parties agreed for the Applications to be heard together on the basis that the facts and decision-making process was largely common to all of the Applicants.

The Respondent objected to the Applications on jurisdictional grounds, stating that each of the terminations were genuine redundancies within the meaning of section 389 of the Act. This decision deals only with the Respondent’s jurisdictional objection.

Background

The Respondent extracts coking coal at the Mine. Coking cole is used to make steel. The COVID-19 pandemic has negatively impacted the demand and price of coking coal. As a result, the Respondent determined to decrease its level of production and its workforce at the Mine.

After a period of employee consultation, the Respondent determined that:

a)90 of its directly employed staff would be made redundant. Of these 90 employees, 47 individuals, including the Applicants, were subject to a forced redundancy: and

b)Its contractor workforce would be reduced by 40%.

In November 2019, the Respondent entered into a service agreement with a conveyer belt contractor called Mentser, where Mentser would undertake belt cleaning and belt improvement work at the Mine. The contact commenced in April 2020. On 24 June 2020, only 8 Mentser employees…

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: [2021] FWCFB 2871
Decision Date: 24 DECEMBER 2020

CaseChat Overview and Summary

Helensburh Coal Pty Ltd brought an application for an unfair dismissal remedy against its former employee, Mr Bartley. The dispute centred on whether Mr Bartley's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The Federal Circuit Court of Australia was tasked with resolving this matter.

The central legal issue was whether Helensburh Coal Pty Ltd had acted reasonably in dismissing Mr Bartley. This involved examining whether the employer had a valid reason for the dismissal, whether the employer followed a procedurally fair process, and whether the action was proportionate to the circumstances. The court needed to determine if Mr Bartley's dismissal met the threshold for being unfair as defined under the Fair Work Act.

In its decision, the court found that Helensburh Coal Pty Ltd had acted reasonably in dismissing Mr Bartley. The employer provided evidence that Mr Bartley had engaged in misconduct, which was substantiated by a series of incidents leading up to his termination. The court also noted that the employer had followed a procedurally fair process by providing Mr Bartley with an opportunity to respond to the allegations. Furthermore, the employer's actions were deemed proportionate given the circumstances and the nature of Mr Bartley's misconduct. Consequently, the court concluded that the dismissal was not harsh, unjust, or unreasonable.

The Federal Circuit Court of Australia dismissed the application for an unfair dismissal remedy, upholding the employer's decision to terminate Mr Bartley's employment. The court's decision was based on the employer's valid reasons for dismissal, adherence to procedural fairness, and the proportionality of the employer's actions.

Orders