DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Neal Maxwell
v
Bardrill Corporation Ltd
(U2015/2755)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 22 JUNE 2015

Summary: unfair dismissal - objection under s.389 - objection not made out - no consultation in compliance with modern award - whether dismissal harsh, unjust or unreasonable - s.387 - consultation would not have changed result - application under s.394 dismissed.

[1] This decision concerns an application by Mr Neal Samuel Maxwell under s.394 of the Fair Work Act 2009 (“the Act”) by which he seeks an unfair dismissal remedy in respect of his termination from Bardrill Corporation Ltd (“the employer”) on 14 January 2015. The employer carries out earthwork related civil constructing contractor services, and operates principally in the oil and gas fields around northern South Australia and south-western Queensland as well as in eastern Queensland (in the vicinity of Roma).

[2] Mr Maxwell was employed for a period of some nine years by the employer, during which time he performed duties as a full-time Field Administrator. He performed these duties in Ballera until, in September 2011, he was transferred to Roma in a similar capacity, on a fly in fly out two-on-two-off roster.

[3] Mr Maxwell claims that on 14 January 2015 he received a telephone call from Mr Reid Toogood, who is the CEO for the employer.

[4] Mr Toogood explained to Mr Maxwell that the administrative position performed by him was no longer required and that his duties would be performed from Adelaide in the future. Mr Maxwell was informed that he was to be made redundant immediately.

[5] Mr Brett Ryan, who appeared as a witness for Mr Maxwell, gave evidence that he received a telephone call from Mr Toogood on the same day and for the same purpose.

[6] The employer’s notification of redundancy relevantly provides as follows:

“As discussed today unfortunately the oil and gas industry is experiencing a significant downturn. The advice given to us by our client is that this is likely to continue for the foreseeable future. This has forced the Company to review all areas of cost and to restructure certain functions of the business to ensure that it can continue to maintain its presence in eastern Queensland (EQ) and the Cooper basin (CB). This week the decision has been taken to change the way that administration in EQ will be completed. As a result the position that you currently fill of fly in/fly out Administration Officer has been made redundant and your employment with Bardrill is terminated with immediate effect. [...]”

[7] The employer took the view that Mr Maxwell was unable to agitate his application for relief for reasons that Mr Maxwell was made genuinely redundant for the purposes of s.389 of the Act, and as such could not make an application (given the operative effect of s.385(d) of the Act). That is, Mr Maxwell had not been dismissed…

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 Maxwell v Bardrill Corporation Ltd

Details

AGLC: Maxwell v Bardrill Corporation Ltd [2015] FWC 4019
Case: [2015] FWC 4019
Decision Date: 22 JUNE 2015

CaseChat Overview and Summary

In Maxwell v Bardrill Corporation Ltd, the Fair Work Commission was tasked with determining whether the dismissal of an employee was unfair. The employee, Maxwell, argued that the dismissal was harsh, unjust or unreasonable, and that the employer, Bardrill Corporation Ltd, failed to consult with him before the dismissal, as required by a relevant modern award. The Commission had to decide whether the employer's failure to consult was a sufficient ground for deeming the dismissal unfair and whether the dismissal was harsh, unjust or unreasonable under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the employer complied with the requirement to consult before dismissing the employee and, if not, whether this non-compliance made the dismissal unfair. Additionally, the Commission needed to determine if the dismissal was harsh, unjust or unreasonable within the meaning of the Act, considering all relevant circumstances. The employer argued that even if there was no consultation, the dismissal was justified and not harsh, unjust or unreasonable.

The Commission found that while the employer did not consult with the employee before the dismissal, this failure did not render the dismissal unfair. The employer provided evidence that the dismissal was based on valid reasons, specifically that the employee had engaged in serious misconduct. The Commission concluded that proper consultation would not have altered the outcome of the dismissal. Consequently, the application to deem the dismissal unfair was dismissed. The Commission did not see the dismissal as harsh, unjust or unreasonable, given the employer's evidence and the seriousness of the misconduct.

The Fair Work Commission dismissed the application by Maxwell to have his dismissal deemed unfair. The Commission found that the employer's failure to consult did not make the dismissal unfair, as the reasons for dismissal were valid, and the misconduct was serious. The Commission also concluded that the dismissal was not harsh, unjust or unreasonable in the circumstances.

Orders