[2014] FWC 7108 [Note: An appeal pursuant to s.604 (C2014/7954) was lodged against this decision - refer to Full Bench decision dated 29 January 2015 [[2015] FWCFB 519] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Reid
v
Broadspectrum Australia Pty Ltd
(U2014/6520)

COMMISSIONER HAMPTON

ADELAIDE, 5 NOVEMBER 2014

Application for relief from alleged unfair dismissal - long term casual employee assigned to a client business - non work related injury - failure to notify of absence or to apply for leave through the employer - informal client-based procedure followed - result was absence without knowledge of the employer - client requested that position be filled by a replacement employee - no work available when employee returned - whether dismissal - whether abandonment of employment - dismissal found - whether unfair - real reason based upon absence of work - sound and objective reason - procedural fairness matters not relevant to real reason and not significant in the circumstances - dismissal not unfair - application dismissed.

1. Introduction and case outline

[1] Mr Matthew Reid has made an application to the Commission seeking a remedy for an alleged unfair dismissal. The application has been made under s.394 of the Fair Work Act 2009. Mr Reid’s employer was Broadspectrum Australia Pty Ltd (Broadspectrum).

[2] Mr Reid was engaged by Broadspectrum in July 2009 and in November of that year he was assigned to work as a Senior Electrician at the BHP Billiton Olympic Dam Corporation Pty Ltd (BHPB) operations at Olympic Dam in South Australia’s far north. This work took place within the Non Process Infrastructure (NPI) department and occurred in the context of a contract with BHPB which requires Broadspectrum to provide labour to support various parts of the Olympic Dam operations.

[3] Although engaged as a casual employee, Broadspectrum accepts that the nature of that service is sufficient for Mr Reid to be otherwise protected from unfair dismissal as contemplated by s.382 of the Act.

[4] Much of the broad setting for this application is not in dispute. Mr Reid was employed by Broadspectrum and he had certain reporting and other obligations in that regard. However, he worked in effect under the day-to-day supervision of BHPB staff in accordance with working rosters and patterns set by that organisation. He completed a shift on 5 February 2014 and was due to work again on 11 February 2014.

[5] Unbeknown to Broadspectrum, Mr Reid suffered a non-work related back injury that required specialist treatment and advice. Mr Reid notified the area supervisor of BHPB of the injury and his likely long-term absence, but did not contact Broadspectrum. The absence, nominally approved by BHPB, extended for a period that ran into a further period of leave that had also been nominally approved by BHPB, again without any reference to Broadspectrum.

[6] During Mr Reid’s absence, senior management of BHPB contacted Broadspectrum, without apparently knowing about the “leave” being “approved” by the local…

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 Matthew Reid v Broadspectrum Australia Pty Ltd

Details

AGLC: Matthew Reid v Broadspectrum Australia Pty Ltd [2014] FWC 7108
Case: [2014] FWC 7108
Decision Date: 5 NOVEMBER 2014

CaseChat Overview and Summary

In Matthew Reid v Broadspectrum Australia Pty Ltd, the applicant, Mr Reid, sought relief from an alleged unfair dismissal. Mr Reid had been employed as a long-term casual by Broadspectrum Australia Pty Ltd, assigned to work for a client. Following a non-work-related injury, Mr Reid did not notify his employer of his absence or apply for leave, instead following an informal procedure with the client. This resulted in Broadspectrum being unaware of Mr Reid's absence, leading the client to request a replacement employee. When Mr Reid returned, no work was available, and Broadspectrum terminated his employment. The primary legal issues revolved around whether Mr Reid's dismissal constituted unfair dismissal, and if the reason for dismissal was valid and objective.

The court examined whether the dismissal was justified and if there were any breaches of procedural fairness. It concluded that the dismissal was indeed valid because the real reason for the dismissal was the absence of work, which was an objective and sound reason. The court found that procedural fairness issues, such as the lack of formal notification and leave application procedures, did not affect the real reason for the dismissal. These procedural matters were deemed insignificant given the circumstances and the real reason for the dismissal. Consequently, the dismissal was found to be fair, and the application for relief from unfair dismissal was dismissed.

The court's decision was based on the principle that the real reason for dismissal, which was the lack of available work, was a valid and objective reason. The procedural fairness issues did not influence the substantive fairness of the dismissal. As a result, Mr Reid's application for relief from unfair dismissal was dismissed, and no further orders were made beyond this decision.

Orders