Kennelly, Barry Ronald v Incitec Ltd - [1998] FCA 1470

FEDERAL COURT OF AUSTRALIA

EMPLOYMENT - termination of employment - summary dismissal - whether conduct constituted ‘serious misconduct’ within meaning of s 170CM(1)(c) Workplace Relations Act 1996 - where employee operated equipment at fertiliser packing plant in contravention of workplace safety procedures, in circumstances where other contraventions by fellow employees of safety procedures were associated with the incident in question - whether onus on employer to prove serious misconduct on part of employee.

Workplace Relations Act 1996 ss 170CP, 170CM(1)(c), 170CR
Workplace Relations Regulations 1989 reg 30CA

Vines v Djordjevitch (1955) 91 CLR 512 applied
McLean v Tedman (1984) 155 CLR 306 cited
Boral Resources Queensland Pty Ltd v Pike [1992] 2 QdR 25 cited

BARRY RONALD KENNELLY v INCITEC LTD
No QG 173 of 1997

SPENDER J
BRISBANE
29 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 173 of 1997

BETWEEN:

BARRY RONALD KENNELLY
APPLICANT

AND:

INCITEC LTD ACN 010 767 283
RESPONDENT

JUDGE(S):

SPENDER J

DATE OF ORDER:

29 OCTOBER 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS:

The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 173 of 1997

BETWEEN:

BARRY RONALD KENNELLY
APPLICANT

AND:

INCITEC LTD ACN 010 767 283
RESPONDENT

JUDGE(S):

SPENDER J

DATE:

29 OCTOBER 1998

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an application pursuant to s 170CP(2) of the Workplace Relations Act 1996 (‘the Act’). The applicant seeks an order pursuant to s 170CR(4) of the Act on the basis that the respondent has contravened s 170CM of the Act. Incitec Ltd (‘Incitec’) terminated Mr Kennelly’s employment at the Gibson Island plant of the respondent on 10 September 1997 because of an incident which occurred at the workplace on 8 September 1997. The termination was without notice or payment in lieu of notice, the respondent contending that Mr Kennelly was guilty of serious misconduct within the meaning of s 170CM(1)(c) of the Act.

If Mr Kennelly was not guilty of serious misconduct, s 170CM(1) of the Act required that he should receive the notice specified in s 170CM(2) or compensation in lieu thereof. Incitec admits that it employed Mr Kennelly from 10 January 1981 to 10 September 1997 and that, if Mr Kennelly was not guilty of serious misconduct, it would have been required pursuant to s 170CM(2) to have paid Mr Kennelly the equivalent of five weeks' pay in lieu of notice. This amounts to a gross figure of $5095.34.

The Act relevantly provides:

“Section 170CP (1) Subject to subsection (8), an employer must not terminate an employee’s employment unless:
(a)the employee has been given the required period of notice (see subsections (2) and (3)); or
(b)the employee has been paid the required amount of compensation instead of notice (see subsections (4) and (5)); or
(c)the employee is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable…

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 Kennelly, Barry Ronald v Incitec Ltd

Details

AGLC: Kennelly, Barry Ronald v Incitec Ltd [1998] FCA 1470
Case: [1998] FCA 1470
Decision Date: 29 OCTOBER 1998

CaseChat Overview and Summary

The case of Kennelly, Barry Ronald v Incitec Ltd before the Federal Court of Australia involved an application for an order against Incitec Ltd for the alleged contravention of s 170CM of the Workplace Relations Act 1996. The applicant, Mr Barry Ronald Kennelly, sought an order pursuant to s 170CR(4) of the Act on the basis that Incitec Ltd had contravened s 170CM of the Act. Incitec Ltd terminated Mr Kennelly's employment at the Gibson Island plant on 10 September 1997 without notice or payment in lieu of notice, contending that Mr Kennelly was guilty of serious misconduct within the meaning of s 170CM(1)(c) of the Act. The primary legal issue before the court was whether Mr Kennelly's conduct constituted 'serious misconduct' within the meaning of s 170CM(1)(c) of the Act. The court found that Mr Kennelly's failure to inspect the head roller of the elevator to ensure that it was safe to remove the danger tag and commence the operation of the elevator was an omission that, in the circumstances, amounted to conduct within reg 30CA(1)(b). Such visual inspection as he performed was wholly insufficient to discharge his responsibilities in the circumstances, and the fact that fortunately no person was injured or killed as a result of the operation of the elevator on that morning could not affect the conclusion that the start up in the circumstances involved a serious risk of injury. The court dismissed the application and found that Mr Kennelly's conduct was serious misconduct as defined by reg 30CA(1)(b).

Orders