DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Kenny
v
BHP Coal Pty Ltd
(U2014/16001)

COMMISSIONER BOOTH

BRISBANE, 13 NOVEMBER 2015

Termination of employment – arbitration – Reinstatement, Continuity of employment and compensation.

[1] Mr Michael Kenny made application for unfair dismissal relief under s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Kenny worked as an electrician for BHP Coal at the Goonyella Riverside Mine (the Mine) near Moranbah until his termination on 2 December 2014. He had been employed continuously with BHP Coal since December 1986, almost 28 years.

[2] BHP Coal’s case is that it had a valid reason to terminate Mr Kenny's employment after a vehicle rollover and two earlier failures (on the same shift) by Mr Kenny to complete safety requirements. BHP Coal asserts it lost confidence in Mr Kenny’s ability to work in a safe manner. He was dismissed and paid in lieu of notice.

[3] Mr Kenny submitted the dismissal was unfair, and seeks to be reinstated to his position with ancillary orders about continuity of employment and restoration of the lost pay.

[4] He was represented by Ms Hartigan of Counsel instructed by Ms Pat Rogers of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and BHP Coal by Mr Hall of Ashurst Australia.

Facts

[5] Mr Kenny’s night shift was due to run from 6.00pm on 29 October 2014 to 6.15am the next morning.

Storm at the start of shift

[6] Mr Kenny was a passenger in a vehicle with other crew members driving to the site when a storm broke out, bringing winds, rain, hail and dust. The driver pulled off the road until visibility improved sufficiently to drive safely, some 30 minutes later. As a result the routine for the start of the shift was disrupted. Mr Kenny checked with the crew he was relieving, warning them of potential hazards arising from the storm, and checking work requirements for the shift ahead.

[7] He neglected to complete the Occupational Safety Performance Assessment Technology (OSPAT) Test, a mandatory fitness for work test then in use at the Mine. It is not contended that he was impaired or unfit for work. Later drug and alcohol tests were negative.

A second storm

[8] Mr Kenny commenced a pre-start check of the vehicle he was to use during his shift, a Toyota Landcruiser utility. The vehicle was parked in the open. He noted there were no issues recorded in the checklist from the previous shift. His evidence is that he completed the external checks, and checks of the brakes, steering, tyres and seat belts. He was still to check fluid levels, belts, brakes, lights, first aid and safety equipment, two-way radio and dashboard instruments when a dust storm arose. He returned the checklist book to the vehicle and took shelter in the workshop. While waiting for the storm to abate, he commenced his scheduled work with another electrician, Mr…

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: [2015] FWC 4231
Decision Date: 13 NOVEMBER 2015

CaseChat Overview and Summary

The case of Michael Kenny against BHP Coal Pty Ltd involved a dispute regarding the termination of Kenny's employment. Kenny sought reinstatement to his position, continuity of employment, and compensation, claiming his dismissal was unfair and unjust. The matter was referred to arbitration by the Fair Work Commission. The central issues for the Commission to decide were whether Kenny's dismissal was indeed unfair and whether he was entitled to reinstatement, continuity of employment, and compensation. The Commission had to evaluate the evidence presented regarding the circumstances of Kenny's termination and the fairness of the process followed by the employer.

The Commission meticulously reviewed the evidence and submissions from both parties, focusing on the procedural fairness of the dismissal and the substantive reasons behind it. It considered the employer's right to terminate employment for valid reasons and the employee's entitlement to procedural fairness. The Commission concluded that the employer had failed to provide adequate reasons for the termination and that the process was not entirely fair. Consequently, the Commission determined that Kenny's dismissal was unjust and ruled in his favour for reinstatement, continuity of employment, and compensation.

The Commission's decision emphasised the importance of fair procedures in terminations and underscored the employer's responsibility to justify dismissals adequately. Kenny was reinstated to his position, and the employer was directed to provide him with continuity of employment and compensation for the period of his absence. This ruling reinforces the principle that employees are entitled to procedural fairness in termination processes and that employers must substantiate their actions when dismissing staff.

Orders