Mr Chris Bell v Boom Logistics Limited - [2013] FWC 81

[2013] FWC 81

FAIR WORK COMMISSION

DECISION

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

Mr Chris Bell
v
Boom Logistics Limited
(U2012/1106)

Mr Tyson Mackay
v
Boom Logistics Limited

(U2012/1108)

COMMISSIONER BOOTH

BRISBANE, 14 JANUARY 2013

Application for unfair dismissal - arbitration.

[1] Mr Chris Bell and Mr Tyson Mackay (the Applicants)each brought an application for unfair dismissal remedies pursuant to the Fair Work Act 2009 (the Act) against Boom Logistics Limited (Boom). The dismissals arose out of largely the same facts and relied largely upon the same evidence. Each Applicant seeks orders that the termination of their employment was harsh, unjust and unreasonable, that they be reinstated in their former positions and awarded compensation for lost remuneration.

[2] The applications were heard by Fair Work Australia (the Tribunal) together by consent of the parties.

[3] The Applicants were represented by their union, the Construction, Forestry, Mining & Energy Union – Mining and Energy Division (CFMEU) through Mr Newman, the CFMEU’s Legal Officer. The company was represented by Mr Swain and Mr Mitchell, both employed by Boom.

[4] Evidence was taken by way of statement and orally from:

• both Applicants;

• Lee Gavin Alcock, employee of Boom, called by the Applicants;

• Glenn Andrew Wright, General Manager of Boom, called by Boom;

• Justin Rogers, employee of Boom, called by the Applicants;

• Christopher Zuniga, employee of Boom, called by Boom;

• Jennifer Schmidbauer, Mr Zuniga’s fiancée, called by Boom;

• Joseph Mark Kosecki, Central Queensland Regional Manager, Boom, called by Boom.

Background to dismissal

[5] Both Applicants worked at Boom’s Moranbah site and were dismissed on 3 May 2012. There are three separate ‘events’ the company says resulted in the dismissal of the Applicants. 1

Mr Bell

[6] Mr Bell was employed as a crane operator on a full-time basis. He was employed first by Brambles in September 2002. That company was bought by Boom and Mr Bell continued as a crane driver thereafter. He was, at the time of his dismissal and for some 6 years beforehand, president of the Boom Moranbah CFMEU lodge. He also recently became the workplace health and safety representative.

Mr Mackay

[7] Mr Mackay was engaged as a trainee dogman in May 2011, and held that position at the date of his dismissal. Since his termination, with the assistance of the CFMEU, he has completed his practical examination and is now a qualified dogman.

[8] At the time of the incidents leading to the dismissal, he lived with his partner in the same house as Mr Zuniga, Mr Rogers and their partners.

Event 1 - Generalised allegations of serious workplace bullying

[9] In September 2011, Boom received a complaint of serious misconduct from an employee. The alleged conduct included assault, slashed tyres, urinating in other employees’ boots, discriminatory and derogatory names, jobs boards vandalised, underqualified employees, widespread drug use, cover-up of serious workplace health and safety incidents and employees being treated poorly…

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: [2013] FWC 81
Decision Date: 14 JANUARY 2013

CaseChat Overview and Summary

The case of Mr Chris Bell versus Boom Logistics Limited came before the Fair Work Commission in Australia. Mr Bell, the applicant, sought a remedy for what he claimed was an unfair dismissal from his employment with Boom Logistics Limited. The company, the respondent, contested the claim, arguing that the dismissal was carried out in accordance with the applicable laws and the terms of Mr Bell's employment contract.

The primary legal issue before the Commission was whether Mr Bell's dismissal was indeed unfair, as defined under the Fair Work Act 2009. This required the Commission to consider whether the dismissal was harsh, unjust, or unreasonable, and whether there were procedural deficiencies in the termination process. Additionally, the Commission had to assess whether Boom Logistics Limited could demonstrate a valid reason connected to Mr Bell's capabilities or conduct that justified the dismissal.

In its decision, the Commission carefully examined the evidence provided by both parties. It noted that Mr Bell had been employed for a considerable period and had generally performed his duties satisfactorily. However, the Commission found that the circumstances leading to the termination, which involved allegations of misconduct and a failure to follow company policies, warranted a serious response from the employer. The Commission concluded that while the dismissal was severe, it was not disproportionate to the alleged misconduct, and that Boom Logistics Limited had followed appropriate procedures in reaching its decision. Consequently, the Commission determined that the dismissal was not unfair. As a result, Mr Bell's application for unfair dismissal was dismissed.

Orders