McGeehan v Hazelton Air Services Pty Ltd - [1997] IRCA 118

DECISION NO:118/97
CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - CONDUCT AND PERFORMANCE - REINSTATEMENT - Alcohol and public safety - Role of Directors in application when Dispute at Board or Shareholder Level - No Opportunity to respond to allegations about conduct until official investigation complete
LEGAL REPRESENTATION - desirability to separate representation of two dismissed employees where possible conflict of interest.
IMPRACTICABLE - Not impracticable to reinstate if applicant agrees to attend Alcohol and Drug Counselling Program and to monitoring of alcohol intake by breath test or blood or urine sample.
COMPENSATION to be paid from date of completion of Investigations.

WORKPLACE RELATIONS ACT 1996 ss 170DE, 170DC and 170EE, ss 380 and 480.
TRAFFIC ACT 1909 (NSW) s 2
CIVIL AVIATION ORDER 48, Civil Aviation Act 1988, s 20A and CIVIL AVIATION REGULATION 256(2)
Pilots SUPPLEMENTARY AWARD 1988, ss 19(a), 36 and 55
JUSTICES ACT 1902 (NSW) ss 48A and 48H
TRAFFIC ACT 1909 (NSW) s 2, s EIB (e), (f) and (g), s 4E(ID)
DANGEROUS GOODS ACT 1975 (NSW)
RADIATION CONTROL ACT 1990 (NSW)
RAIL SAFETY ACT 1993 (NSW) s 61 and Sch 2
R v Bulejcik, 135 ALR 517
Dominican v R (1992) 173 CLR 555
Davies and Cody v R (1937) 57 CLR 170
Briginshaw v Briginshaw (1930) 60 CLR 335
Selvachandran v Peteron Plastics Pty Ltd (1995-6) 62 IR 371
Liddell v Lembke 1 IRCR 466
Victoria & Ors v The Commonwealth (1996) 66 IR 392
The Awu-Fime Amalgamated Union v Queensland Alumina Limited (Unreported IRCA Moore J, 14 July 1995, Brisbane)
Perrin v Des Taylor Pty Ltd (1994) 58 IR 254
BRETT MCGEEHAN -v- HAZELTON AIR SERVICES PTY LTD
NI 3851 of 1995
Before:  MCILWAINE JR
Place:  SYDNEY
Date/s of hearing:     7,9 FEB, 19-21 MAR, 10 MAY, 7 JUN, 20 JUN 1996
Date of judgment:     9 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 3851 of 1995

BETWEEN:

Brett MCGEEHAN
Applicant
AND

HAZELTON AIR SERVICES PTY LTD
Respondent
BEFORE:     MCILWAINE
PLACE:        SYDNEY
DATE:           9 APRIL 1997
DRAFT MINUTES OF ORDERS

THE COURT ORDERS THAT:
1.        The respondent did not have a valid reason for the termination of the     applicant.
2. The respondent contravened Section 170DC of the Act.
3.        Subject to a written agreement being given to the respondent, within 7 days of today, by the applicant to the monitoring of his drug and alcohol usage for a period of one year and to satisfactorily attend a recognised     educational and counselling program on Alcohol and Drug addiction     nominated by his Chief Pilot, it is not impractical to reinstate the applicant to the position in which he was employed before his            termination.
4.        The respondent to reinstate the applicant to the position in which he was         employed immediately before his termination on 15 September 1995.
5.        The respondent to reinstate the applicant on the same terms and            conditions as applied to the applicant at the date of termination and that          such period commence from the…

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: [1997] IRCA 118
Decision Date: 09 April 1997

CaseChat Overview and Summary

The dispute in McGeehan v Hazelton Air Services Pty Ltd involved the applicant, McGeehan, and the respondent, Hazelton Air Services Pty Ltd, concerning an alleged unlawful termination. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes under Australian industrial law. The central issue was whether Hazelton Air Services Pty Ltd had valid grounds to terminate McGeehan's employment and whether the process followed complied with relevant industrial laws. Specifically, the court had to determine if the termination was justified due to McGeehan's conduct and performance, and if the process allowed for adequate opportunity to respond to allegations of misconduct.

The court examined the evidence presented regarding McGeehan's conduct, particularly focusing on incidents that occurred in the workplace and their implications for public safety. Additionally, the role of the directors in the decision-making process was scrutinized, especially since the dispute involved internal board or shareholder-level issues. A significant point of contention was whether McGeehan was provided with a reasonable opportunity to respond to the allegations against him before the official investigation concluded. The court also considered the importance of legal representation in such disputes, highlighting the desirability of separating the roles of representation from the investigative process.

The Fair Work Commission found that the termination was not justified due to procedural shortcomings in providing McGeehan with an opportunity to respond to the allegations before the investigation was completed. The court emphasised the importance of fair process in employment terminations, particularly when the dispute involves internal company matters and the potential impact on public safety. Consequently, the decision was made to order reinstatement of McGeehan’s employment along with appropriate compensation for the unlawful termination. The court underscored the necessity of adhering to legal principles that ensure fair treatment and due process in employment matters.

Orders