Henry Armour v Mader Contracting Pty Ltd - [2023] FWC 1034

[2023] FWC 1034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Henry Armour
v

Mader Contracting Pty Ltd

(U2022/5218)

COMMISSIONER SCHNEIDER

PERTH, 2 MAY 2023

Application for an unfair dismissal remedy

On 9 May 2023, Mr Henry Armour (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Mader Contracting Pty Ltd (the Respondent).

The Applicant seeks compensation as a remedy.

Background

The uncontested factual background to the matter is as follows:

· The Applicant commenced employment with the Respondent on 5 August 2019.

· The Applicant had been working for the Respondent at the Tanami Gold Mine which is operated by Newmont Mining Services from May 2020 (the Client Site).

· The Applicant was engaged as a heavy-diesel mechanic.

· On 5 April 2022, the Applicant arrived on site and commenced night shift.

· On 9 April 2022, the Applicant checked out two, new, 300mm shifters from the Dead Bullock Soak Warehouse (DBS Warehouse).

· On 12 April 2022, the Applicant finished his swing and was due to depart site.

· During a routine x-ray screening at the airport, the Applicant was found to be in possession of the shifters.

· The Respondent first became aware of the incident on 15 April 2022.

· The events that occurred between 15 and 19 April 2022, when the Respondent moved to dismiss the Applicant, are contested between the parties and will be discussed in depth in this decision.

· The Applicant’s employment with the Respondent was terminated on 19 April 2022.

· The Applicant was covered by an Award, being the Mining Industry Award 2020.

The matter was subject to a Hearing before the Commission. At the Hearing, the Applicant gave evidence on his own behalf. The following witnesses gave evidence on behalf of the Respondent:

· Mr Brody Grohs (Mr Grohs), Coordinator at the Respondent.

· Mr Liam Whitehead (Mr Whitehead), Operations at the Respondent.

Legislation

When can the Commission order a remedy for unfair dismissal?

Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more 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: [2023] FWC 1034
Decision Date: 2 MAY 2023

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application for an unfair dismissal remedy by Mr Henry Armour against Mader Contracting Pty Ltd. Mr Armour alleged he was unfairly dismissed from his role as a heavy-diesel mechanic at the Tanami Gold Mine. The primary issue was whether Mr Armour was unfairly dismissed, considering the FWC's criteria for determining harshness, unjustness, or unreasonableness of a dismissal. The Commission found that while Mr Armour's conduct in not returning two shifters from the site provided a valid reason for dismissal, the process leading to his dismissal was procedurally flawed. The Respondent failed to notify Mr Armour of the reason for dismissal and did not provide him an opportunity to respond before making the decision to terminate his employment. Despite the valid reason for dismissal, the flawed process rendered the dismissal harsh and unreasonable. Therefore, the Commission concluded that Mr Armour was unfairly dismissed, and it would direct a hearing in relation to the remedy.

Orders