Kelley Fouracre v BHP Coal Pty Ltd - [2023] FWC 1068

[2023] FWC 1068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kelley Fouracre
v

BHP Coal Pty Ltd

(U2022/6596)

COMMISSIONER SPENCER

BRISBANE, 5 MAY 2023

Application for unfair dismissal – jurisdictional decision - Applicant passed away after hearing – whether the Commission has jurisdiction to issue a decision – whether application for unfair dismissal remedy made under section 394 survives death of applicant and may be continued by a person of appropriate legal standing or estate - application dismissed.

Mr Kelley Fouracre (the Applicant) lodged an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) alleging that the dismissal of his employment by BHP Coal Pty Ltd (the Respondent/the Employer/BHP) was harsh, unjust or unreasonable. The Applicant sought reinstatement, continuity of service, remuneration for the interim period or compensation.

The application was subject to a hearing. Mr Fouracre was represented by Mr Aidan Nash of the CFMMEU (the Union), and the Respondent was represented by Mr Nicholas Le Mare of Corrs Chambers Westgarth, instructed by Ms Tahira Sabdia and Ms Emily Larsen from the Respondent. At the conclusion of the hearing, the decision was reserved. The matter involved an allegation of sexual harassment and accordingly, various redactions of names on the transcript document were also applied for by consent between the parties. Confidentiality orders were also sought and granted by consent after the hearing.

Following the hearing but prior to a decision being issued, the Commission and the Respondent were informed that Mr Fouracre had passed away. The Applicant’s Union Representative informed Chambers by email that:
…
“We received the sad news this morning that the Applicant, Mr Fouracre, died by suicide on the weekend.

The union will communicate with his family about their wishes in relation to these unfair dismissal proceedings. Given that this must be a difficult time for them, we anticipate that it could be a week or two before we have any instructions.

I am bringing this matter to the Commission’s attention, and I request, in consideration of Mr Fouracre’s family, that no decision be issued, and no decision be made about whether or not to issue a decision, until after we have been able to receive instructions.

I will revert to Chambers after seeking instructions from Mr Fouracre’s family.”
…

After a period of time, but prior to a further response from the Union, correspondence was sent to the parties, acknowledging this email from the Union and conveying the Commission’s condolences to all, related to the circumstances of Mr Fouracre’s passing. Reference was also made to the Union’s correspondence in which they referred to the potential of instructions being obtained from the deceased Applicant’s family, in relation to them seeking the possible publication of a decision in this matter. Accordingly, it was set out in the correspondence from my Chambers that it was necessary to provisionally convey some of the relevant case authorities to be considered in…

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.

Keep reading for free

Create a free CaseChat account to read Kelley Fouracre v BHP Coal Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 1068
Decision Date: 5 MAY 2023

CaseChat Overview and Summary

Kelley Fouracre brought an unfair dismissal application against BHP Coal Pty Ltd, alleging his dismissal was harsh, unjust, or unreasonable. The matter was heard, and a decision was reserved. Unfortunately, Mr Fouracre passed away before a decision was issued. The matter then became whether the Commission could issue a decision in light of the Applicant's death, and whether any remedy could be granted. The Union submitted that the Commission could issue a decision, and that a remedy was not a prerequisite to a finding of unfair dismissal. The Union submitted that the absence of a statutory provision prohibiting the continuation of an application after the Applicant's death, and the absence of a person with legal authority to continue the application did not preclude the Commission from issuing a decision. The Respondent submitted that the proceedings should cease and the file be closed, as the right to pursue an unfair dismissal application is personal and non-transferrable. They submitted that there was no provision in the Fair Work Commission Rules 2013 or the Fair Work Act 2009 allowing for the substitution of a party.The Commissioner found that the nature of the right to pursue an unfair dismissal application and the remedies available were personal and non-transferrable. The absence of a statutory provision or rule allowing for the substitution of a party or the continuation of proceedings in the event of the Applicant's death meant that the application could not proceed. The Commissioner also found that there was no person with legal authority to continue the application. As such, the application was dismissed as it had no reasonable prospects of success.

Orders