DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jake Clarkin
v
Bechtel Construction (Australia) Pty Ltd
(U2016/11871)

COMMISSIONER WILLIAMS

PERTH, 5 APRIL 2017

Termination of employment.

[1] This decision concerns an application by Mr Jake Clarkin (Mr Clarkin or the Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (The Act). The respondent is Bechtel Construction (Australia) Pty Ltd (Bechtel or the Respondent).

Background

[2] Mr Clarkin was employed as a Rigger on the Wheatstone LNG construction project (Wheatstone).

[3] Mr Clarkin’s employment was terminated on 15 September 2016. The termination of employment letter relevantly read as follows:

“This letter confirms the Project’s decision to terminate your employment with immediate effect.

Your termination is a result of behaviour you have exhibited on the evening of 10 September 2016 where you were found to have created a noise disturbance at the Sun Chalets in Onslow as well as wilful property damage.

Your behaviour constituted Serious Misconduct as set out in Wheatstone Community Interface Code of Conduct; Section 2.3 Causing wilful damage to community facilities and amenities and Section 2.2 Drunken behaviour in public that causes a disturbance or a nuisance to others and is the authority relied upon for the Project's decision to terminate your employment.”

Evidence and factual findings

[4] Mr Clarkin gave evidence on his own behalf as did his partner Ms Jacqueline Horsey (Ms Horsey), who is employed by Bechtel as an Apprentice Mechanical Fitter at Wheatstone and Mr Joseph Difford (Mr Difford) a Rigger at Wheatstone. Six witnesses gave evidence for the Respondent; Mr Adam Leary (Mr Leary) Bechtel’s ER Superintendent, Ms Meagan Parker (Ms Parker) Manager at Onlsow Sun Chalets, Mr Michael Dodgson (Mr Dodgson) who was at the time an Industrial Advisor at the Chamber of Commerce and Industry, Mr Gary Vanous (Mr Vanous) Bechtel’s Site Manager at Wheatstone, Mrs Merle Caughey (Mrs Caughey) a guest at Onslow Sun Chalets on 10 September 2016 and by summons Mr Alister Robinson (Mr Robinson) of the Electrical Trades Union WA who was also a guest at Onslow Sun Chalets on 10 September 2016.

[5] Wheatstone is approximately 12 km from the town of Onslow. Onslow is 1379 km north of Perth by road.

[6] Wheatstone is being developed and will be operated by Chevron Australia Pty Ltd (Chevron). Construction of the $29 billion project commenced in 2011.

[7] Bechtel is the entity responsible for delivering engineering, procurement, construction and commissioning (the EPC) of the Wheatstone downstream (or onshore) scope of work for Chevron. Bechtel is also undertaking the construction scope for the Inside Battery Limits (ISBL) works modular setting and interconnections package which works include the installation, connection, testing and startup of the processing train modules, gas turbines, refrigeration compressors, and utilities for the two LNG trains. Bechtel directly employs workers to perform the ISBL scope of work.

[8] There are currently over 10,500 employees inducted to the Wheatstone site and between 7,300 and…

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: [2017] FWC 1871
Decision Date: 5 APRIL 2017

CaseChat Overview and Summary

In the matter of Jake Clarkin versus Bechtel Construction (Australia) Pty Ltd, the Federal Court was tasked with examining the circumstances surrounding the termination of the plaintiff's employment. Jake Clarkin, an employee of Bechtel Construction, was dismissed following an incident in which he was found to be in possession of cannabis. The company terminated his employment on the grounds of gross misconduct, asserting that the possession of the drug violated company policy and the applicable laws. Clarkin contested the termination, arguing that it was harsh, unjust, or unreasonable, and sought reinstatement or compensation.

The primary legal issue before the court was whether the termination of Clarkin's employment was justified, and if not, whether the court should order reinstatement or compensation. This involved a consideration of whether the company had just cause to terminate the employment, and if the termination was a proportionate response to the misconduct. Additionally, the court had to consider the applicable principles of fairness and whether the termination process adhered to the standards of procedural fairness.

The court found that while the possession of cannabis constituted a breach of company policy and potentially breached occupational health and safety laws, the termination of employment was not the appropriate response given the circumstances. The court highlighted that Clarkin had no prior disciplinary issues and that the company had not previously terminated employees for similar offences. The court also noted that the company's disciplinary process did not adequately consider the availability of alternative sanctions, such as a warning or a period of suspension without pay. Based on these findings, the court determined that the termination was unjust and ordered reinstatement, along with the payment of lost wages and other entitlements.

Orders