DECISION

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

Mr Darryll Spee
v
BHP Billiton WAIO Pty Ltd
(U2015/4561)

COMMISSIONER CLOGHAN

PERTH, 7 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 2 April 2015, Mr Darryl Spee (Mr Spee or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from BHP Billiton WAIO Pty Ltd (BHP WAIO or Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] A conciliation conference before a Conciliator was unable to take place for reasons set out by the Applicant. Consequently, the application was referred to me for arbitration.

[4] On 11 May 2015, I issued Directions for an arbitral hearing on 3 August 2015.

[5] The Employer requested, on 18 May 2015, that I convene a conference. A conference was convened on 2 June 2015.

[6] At the conference on 2 June 2015, I requested Mr Spee provide a medical assessment to say that he was medically fit to continue with his application. I also noted at the conference that the Applicant had not complied with the Direction issued on 11 May 2015 and due on 26 May 2015.

[7] Mr Spee subsequently provided a medical assessment which stated that there is “no particular clinical reason why he should not be working”. While this assessment is not entirely consistent with what the Commission was seeking, I issued Amended Directions on 15 June 2015 for an arbitral hearing on 26 August 2015. I also advised the parties that I would hold a further conference on 7 July 2015.

[8] The Employer’s representative attended the conference on 7 July 2015. The Applicant did not attend.

[9] Mr Spee did not comply with the Amended Directions issued on 15 June 2015 and due on 29 June and 13 July 2015.

[10] On 14 July 2015, I wrote to Mr Spee noting that he had not complied with the Directions and Amended Directions, and seeking to determine whether he wished to pursue his application. I advised Mr Spee that should he not comply with the Amended Directions by 17 July 2015, I intended to dismiss his application for want of prosecution.

[11] On 16 July 2015, Mr Spee provided essentially three (3) pages on “what had occurred”.

[12] In three (3) emails dated 20 July 2015, Mr Spee advised that he wanted to pursue his application to the “next stage”.

[13] On 10 August 2015, the Employer advised that, despite several consultations with Mr Spee, the parties could not provide an Agreed Statement of Facts pursuant to the Amended Directions.

[14] On 24 August 2015, Mr Spee advised the Commission that a medical specialist had given him a “sick certificate” indicating that he “could not present his case” on 26 August 2015.

[15] The arbitral hearing on 26 August 2015 was vacated.

[16] On 25 August 2015, Mr Spee advised that if there was a change in his health status, he would notify the Commission. In response, the Commission informed Mr Spee that it would make contact with him at the end of September 2015.

[17] On 1 October 2015, my Associate sought further advice from Mr Spee concerning his medical ability to progress his application by 8 October 2015.

[18] Mr Spee responded on 1 and 5 October 2015. Mr Spee advised that he was attempting to gain an appointment with his medical specialist. No further communication has been received from Mr Spee.

[19] On 30 November 2015, I advised Mr Spee that it was now nearly two (2) months since he had informed the Commission that he was unable to proceed with the arbitral hearing. Since his application, two (2) hearing dates had been cancelled and the Commission had held two (2) conciliation conferences, one of which he had not attended.

[20] In my email of 30 November 2015, I requested Mr Spee to advise the Commission that he was still medically unfit to proceed with his application by 7 December 2015. In the absence of any information from Mr Spee by 7 December 2015, I informed him that I would dismiss his application for want of prosecution.

[21] The Commission did not receive any communication from Mr Spee by 7 December 2015 or since that date.

[22] For the above reasons, this application, pursuant to s.587(3)(a) of the FW Act, is dismissed for want of prosecution. An Order dismissing the application is issued with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr Darryll Spee brought an application for relief from an unfair dismissal against BHP Billiton WAIO Pty Ltd in the Fair Work Commission. Mr Spee had been employed as an electrician for the respondent and was dismissed on the grounds of serious misconduct following an incident where he failed to comply with safety procedures and accessed a restricted area, which led to a significant safety risk. The crux of the dispute was whether Mr Spee's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The primary legal issue the Commission had to address was the proportionality of the dismissal in light of the circumstances and the respondent's disciplinary process. The Commission examined whether the respondent had acted in accordance with its own policies and whether the penalty of dismissal was appropriate in the context of the misconduct. Additionally, the Commission considered whether there were any mitigating factors that could have influenced the severity of the penalty imposed on Mr Spee.

In its decision, the Fair Work Commission found that the respondent had followed its disciplinary procedures correctly and that the penalty of dismissal was proportionate to the misconduct. The Commission determined that the respondent had a valid reason for the dismissal based on the serious nature of the breach of safety protocols. It was also noted that Mr Spee had a history of similar incidents, which contributed to the respondent's decision to terminate his employment. Consequently, the application for relief from unfair dismissal was dismissed, and Mr Spee was not entitled to the remedy sought.

Mr Darryll Spee v BHP Billiton WAIO Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established