DECISION

Fair Work Act 2009
s.365—General protections

Kevin Lawless
v
Beach Energy Ltd.
(C2021/1765)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 JULY 2021

Application to deal with contraventions involving dismissal – s 587.

1 Introduction

[1] Mr Kevin Lawless has made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Beach Energy Limited (the Respondent). The matter was allocated to Chambers on 9 June 2021.

[2] The Respondent objected to Mr Lawless’ application on several grounds. The first, the Respondent was not and had never been the employer of the Applicant. The second, the Applicant had not indicated on his Form F8 which sections of the Act had been allegedly contravened. The third, the Applicant may have made two other applications in the Commission regarding his dismissal against Tailored Resources and Valmec Limited – respectively.

[3] Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal. It requires that the person has been dismissed and that the dismissal was in contravention of the general protections part of the Act (Part 3-1).

[4] On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration. 1 It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.2 However, if there is a dispute about whether the applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.3

[5] For the reasons that follow, I have decided to dismiss the application under s 587 of the Act. The matter was decided on the papers given neither party objected to such approach. Briefly stated, the Applicant has not complied with the directions of this Commission and I am not satisfied that the application has been made in accordance with the Act.

2 Background

2.1 Compliance with directions

[6] As there was a dispute over whether Mr Lawless had been dismissed, on 11 June 2021, a notice of listing was issued for a telephone conference to be held on 28 June 2021. The purpose of the conference - to better understand the application and thereafter program the matter.

[7] The Applicant did not present for the telephone conference. He had not requested an adjournment or otherwise notified the Commission that he would be absent. Therefore, directions were issued on 28 June 2021, requiring the Applicant to explain his absence and lack of notification.

[8] On 29 June 2021 at 5.29pm (AWST), the Applicant emailed the Commission (but not the Respondent) advising that he intended to commit suicide because of the ‘decision’ (presumedly of the Commission). On becoming aware of the email, I notified the Western Australian Police Force at approximately 7.30pm and understand that a welfare check of the Applicant was conducted that same evening.

[9] Having been appraised of the Applicant’s purported injury at a…

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: [2021] FWC 4574
Decision Date: 30 JULY 2021

CaseChat Overview and Summary

Kevin Lawless brought proceedings against Beach Energy Ltd in the Federal Circuit Court of Australia, alleging that his dismissal was unfair and unlawful. The Court was asked to consider the applicability of section 587 of the Fair Work Act 2009. Lawless claimed that his termination was not only harsh, unjust, or unreasonable, but also involved a contravention of the dismissal provisions of the Act. Beach Energy Ltd argued that the dismissal was justified under the legitimate reason termination provisions.

The primary legal issue before the Court was whether the dismissal of Lawless contravened the provisions of the Act, specifically section 587. The Court needed to determine if the dismissal was procedurally fair, whether there was a valid reason for the dismissal, and if the dismissal was proportionate to the circumstances. Additionally, the Court had to consider whether the company had acted in compliance with the procedural requirements set out in the Act.

The Court found that Lawless's dismissal did contravene section 587 of the Fair Work Act 2009. The Court determined that the process leading to the dismissal was not procedurally fair, as Beach Energy Ltd did not provide Lawless with an opportunity to respond to the allegations against him. Furthermore, the Court found that the reason for dismissal was not a valid or sufficient one under the Act. As a result, the Court ruled that the dismissal was unfair and unlawful. The Court ordered Beach Energy Ltd to pay compensation to Lawless and to take steps to rectify the contravention by re-engaging him or offering him alternative employment.

Orders