Mr Craig Kedwell v WorkPac Mining Pty Ltd - [2022] FWC 7

[2022] FWC 7

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Craig Kedwell
v

WorkPac Mining Pty Ltd

(U2020/8711)

COMMISSIONER RIORDAN

SYDNEY, 4 JANUARY 2022

Application for an unfair dismissal remedy

On 24 June 2020, the Construction, Forestry, Maritime, Mining, and Energy Union (the CFMMEU) filed 6 unfair dismissal applications (the Applications) on behalf of their members Mr Peni Botiki, Mr Francisco Valdivia, Mr Craig Kedwell, Mr Nathan Calder and Mr Wayne Powell (the Applicants). The Respondent to the Applications was WorkPac Mining Pty Ltd (the Respondent).

I issued a Decision on 8 March 2021 [[2021] FWC 508] in which I found that the dismissals of all of the Applicants were harsh and unjust.

During the Hearing, the parties suggested that if I found in favour of the Applicants, that they would like the opportunity to consult in relation to an appropriate remedy.

I note that all of the Applicants, excluding Mr Kedwell, reached an agreed outcome as to the appropriate remedy.

Further to submissions being filed by the parties, a hearing was convened by Microsoft Teams on 1 December 2021 in relation to an appropriate remedy to be awarded to Mr Kedwell.

Legislation

The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:

“390      When the FWC may order remedy for unfair dismissal
(1)       Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a)       the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b)       the person has been unfairly dismissed (see Division 3).

(2)       The FWC may make the order only if the person has made an application under section 394.
(3)       The FWC must not order the payment of compensation to the person unless:
(a)       the FWC is satisfied that reinstatement of the person is inappropriate; and
(b)       the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“391      Remedy—reinstatement etc.
Reinstatement
(1)       An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a)       reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b)       appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A)     If:
(a)       the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b)       that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order…

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: [2022] FWC 7
Decision Date: 4 JANUARY 2022

CaseChat Overview and Summary

In the matter of Mr Craig Kedwell against WorkPac Mining Pty Ltd, the Fair Work Commission considered an application for a remedy for unfair dismissal. The Commission had previously determined that Mr Kedwell's dismissal was harsh, unjust, or unreasonable. The legal issues before the Commission were whether Mr Kedwell was entitled to compensation for the unfair dismissal and, if so, the appropriate amount. The Commission held that reinstatement was inappropriate, as Mr Kedwell had secured alternative employment. The Commission also found that an order for compensation was appropriate, given the circumstances of the case, including the short length of service and the impact of the dismissal on Mr Kedwell. The Commission ordered that Mr Kedwell be paid $2,550.00 (taxed at his normal rate) plus his normal superannuation contribution for that week. The Commission took into account all relevant circumstances, including the effect of the order on the employer's enterprise, the efforts of Mr Kedwell to mitigate his loss, and any remuneration earned by Mr Kedwell during the period between the dismissal and the making of the order for compensation.

Orders