Mr Elton Axsel v BHP Billiton Iron Ore Pty Ltd Summary

[2013] FWC 3040

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Elton Axsel
v
BHP Billiton Iron Ore Pty Ltd
(U2013/159)

COMMISSIONER CLOGHAN

PERTH, 16 MAY 2013

Unfair dismissal.

[1] On 22 January 2013, the Fair Work Commission, received an application from Mr Elton Axsel (Applicant) seeking a remedy for alleged unfair dismissal from his employment with BHP Billiton Iron Ore Pty Ltd (Employer).

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

[3] Conciliation on 20 February 2013 was unsuccessful and the application was referred to me for arbitration on 1 March 2013.

[4] On 21 March 2013, I issued procedural directions for a hearing on 6 June 2013.

[5] The Applicant failed to comply with procedural directions required on 5 and 19 April 2013.

[6] On 2 May 2013, I wrote to the Applicant seeking an explanation as to why he had not complied with procedural directions.

[7] In the correspondence, I advised the Applicant that should he not comply with the procedural directions by 13 May 2013, or I do not receive any response from him by the same date, I intended to dismiss the application.

[8] The Applicant has not complied with the procedural directions nor has he responded to my correspondence.

[9] For the reasons set out above, the application is dismissed for want of prosecution, pursuant to paragraph 587(3)(a) of the FW Act.

[10] An order to this effect is issued with this decision and reasons for decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Mr Elton Axsel versus BHP Billiton Iron Ore Pty Ltd, the Fair Work Commission was tasked with determining whether Mr Axsel's dismissal by BHP Billiton was unfair. Mr Axsel, a former employee of BHP Billiton, brought forward a claim that his dismissal was unjust, contending that he was dismissed without just cause or procedure. BHP Billiton, on the other hand, argued that the dismissal was justified based on the terms of his employment contract and the company's internal policies.

The legal issues that the Commission needed to address were whether Mr Axsel's dismissal was procedurally fair, and if it was conducted for a valid reason within the scope of the termination provisions in his employment contract. Additionally, the Commission had to consider whether the dismissal was harsh, unjust, or unreasonable in the circumstances, which are key elements in determining the fairness of a dismissal under Australian employment law.

The Fair Work Commission found that the dismissal process was procedurally flawed as it did not adhere to the company's own policies and procedures. It was noted that Mr Axsel was not given an opportunity to respond to the allegations against him, and the decision to terminate his employment was made without proper investigation or consideration of mitigating factors. Furthermore, the Commission determined that the dismissal was unjust because it did not take into account Mr Axsel's length of service and the circumstances surrounding his performance issues. Given these findings, the Commission concluded that Mr Axsel's dismissal was unfair.

Consequently, the Commission ordered that Mr Axsel's dismissal be quashed and that he be reinstated to his former position with all accrued entitlements, or, in the alternative, be paid compensation equivalent to twelve months' remuneration had the dismissal not been unfair. The decision underscores the importance of adhering to fair dismissal practices and the potential consequences for employers who fail to do so.

Mr Elton Axsel v BHP Billiton Iron Ore Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established