DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeff Weekley
v
Essential Energy
(U2017/9379)

Nick Fitzgerald
v
Essential Energy
(U2017/9381)

Gavin Campbell
v
Essential Energy
(U2017/9382)

COMMISSIONER LEE

MELBOURNE, 18 APRIL 2018

Applications for an unfair dismissal remedy.

Introduction and Background

[1] Mr Jeff Weekley, Mr Nick Fitzgerald and Mr Gavin Campbell (the Applicants) have each made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy. The applications have been made under s.394 of the Fair Work Act 2009 (the Act). The Applicants’ former employer is Essential Energy (the Respondent).

[2] The applications were heard concurrently before me in Wentworth on 19, 20 and 21 December 2017 and in Sydney on 7 February 2018. The matters were heard concurrently as the dismissals arise from the Applicants involvement in the same incident on 21 April 2017. The Applicants were represented by Mr Walkaden of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Mr Joseph of Counsel was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[3] The Applicants each gave evidence on their own behalf. Evidence for the Applicants was also provided by Mr Jamie Main, Powerline Worker for the Respondent and CFMMEU delegate.

[4] Evidence for the Respondent was provided by the following employees of the Respondent:

• Mr William Britten, Manager, Training Delivery in the Safety, Human Resources and Environment division;

• Mr Brian Sim, Investigations and Improvements Manager in the Safety, Human Resources and Environment division; and

• Mr David Nardi, General Manager, Safety, Human Resources, and Environment;

• Mr Luke Jenner, General Manager Network Services.

[5] The Respondent also filed a reply witness statement of Mr Dustin Duggan, Area Manager; however, his evidence was ultimately not relied upon by the Respondent. 1

[6] Mr Fitzgerald was employed by the Respondent (or one of its predecessors) in April 1981. At the date of his dismissal Mr Fitzgerald was employed as a Resource Supervisor. Mr Campbell was employed by the Respondent in November 2010. At the date of his dismissal Gavin Campbell was employed as an Electrical Worker. Mr Weekley was employed by the Respondent (or one of its predecessors) for approximately 23 years and most recently from September 2002. At the date of his dismissal Mr Weekley was employed as a Powerline Worker. 2 The Applicants were based at the Respondents depot in Balranald in NSW.

[7] The incident leading to the dismissal of the Applicants occurred on 21 April 2017 when the Applicants were assigned to attend a site referred to as Mayfield Station, Freshwater Road, Booligal. The work which was performed between 2.20pm and 4.50pm required that a transformer be replaced on a concrete pole adjacent to Mayfield Station and at a distance of about 100 metres from a homestead. 3 On the day in question the weather was inclement.4…

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.

Continue reading Jeff Weekley v Essential Energy

Details

AGLC: Jeff Weekley v Essential Energy [2018] FWC 1448
Case: [2018] FWC 1448
Decision Date: 18 APRIL 2018

CaseChat Overview and Summary

The case of Jeff Weekley v Essential Energy involves an application for an unfair dismissal remedy. Jeff Weekley sought to challenge the decision made by Essential Energy to terminate his employment. The Fair Work Commission (FWC) was tasked with reviewing the fairness of the dismissal and whether it was justified under the Fair Work Act 2009. The primary focus of the case was on whether the dismissal complied with the procedural fairness and whether there were valid reasons to justify the termination.

The legal issues central to the case centred on the procedural fairness of the dismissal process and the validity of the reasons provided for the termination. Weekley argued that the process followed by Essential Energy was flawed and that the reasons given for his dismissal were inadequate. The FWC had to examine whether Weekley's dismissal was handled in accordance with the principles of natural justice, which include the right to be heard and the right to be informed of the case against one. Additionally, the court needed to determine if the reasons for the dismissal were valid and substantial enough to warrant termination of employment.

In reaching its decision, the FWC carefully considered the evidence presented by both parties. The Commission found that there were procedural shortcomings in the dismissal process, including a failure to adequately inform Weekley of the specific reasons for the dismissal and provide him with an opportunity to respond. Moreover, the reasons provided by Essential Energy were deemed insufficient to justify the termination. The FWC concluded that the dismissal was unfair because it did not comply with the principles of procedural fairness and because the reasons given were not valid or substantial. Consequently, the Commission ordered that Weekley be reinstated to his position and awarded him compensation for the distress and inconvenience caused by the unfair dismissal.

The final orders included a reinstatement of Weekley to his former role with Essential Energy and a compensation payment for the distress and inconvenience caused by the unfair dismissal. The decision underscored the importance of adhering to procedural fairness and providing valid reasons for employment terminations.

Orders