DECISION

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

Mr Gary McDermott
v
BHP Coal Pty Limited
(U2015/16219)

COMMISSIONER SPENCER

BRISBANE, 5 MAY 2016

Application for relief from unfair dismissal – interlocutory application and legal representation of the Respondent.

Introduction

[1] This decision relates to an interlocutory application in relation to the application of Mr Gary McDermott (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging that the termination of his employment from BHP Coal Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The Construction, Forestry, Mining and Energy Union (the CFMEU) made the application behalf of their member Mr McDermott, seeking reinstatement to his position at the Saraji mine. The interlocutory application by the Respondent sought to exclude the Applicant re-opening the Step 2 warning in the unfair dismissal proceedings.

[3] The Respondent’s representative sought directions pursuant to rule 7 (set out below) of the Fair Work Commission Rules 2013, as follows:

7 Application for directions on procedure

(1) A person who wants to initiate a matter, or take a step in a matter, may apply to the Commission for directions about the procedure to be followed in relation to the matter if:

(a) the procedure is not prescribed by the Act, the Regulations, these Rules or by or under any other Act or regulations; or
(b) the person is in doubt about the proper procedure to follow.

Note: The application must be in the approved form—see subrule 8(2).

(2) Any action taken in accordance with a direction of the Commission made in response to an application under subrule (1) is regular and sufficient.

[4] Both parties filed materials in relation to the interlocutory application and the interlocutory matter was heard on Tuesday 26 April 2016.

[5] The CFMEU was represented by Mr Rowan Anderson, Legal Officer, CFMEU. The Respondent was represented by Mr Michael Coonan, Partner, Herbert Smith Freehills solicitors. The Respondent’s representative appeared, by consent, at the interlocutory proceedings and as part of these proceedings, the parties also filed submissions in relation to the Respondent’s application for permission to be legally represented at the substantive hearing pursuant to section 596 of the Act. The CFMEU opposed the Respondent’s legal representation for the substantive hearing and this Decision also deals with this issue.

Background

[6] The interlocutory application sought directions that certain paragraphs of the Applicant’s witness statement and other clauses of other witness statements be struck out, insofar as they dealt with the Applicant’s Step 2 warning. This evidence that the Respondent sought to be excluded challenged the Respondent’s decision to issue the Step 2 warning and the appropriateness of the application of that level of warning. The Respondent’s representative set out the background to this application in the application as follows:

“1. The Applicant was dismissed on 6 November 2015 due to his conduct in an incident on 15 October 2015, in breach of…

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: [2016] FWC 2706
Decision Date: 5 MAY 2016

CaseChat Overview and Summary

The applicant, Mr Gary McDermott, brought an application for relief from unfair dismissal against his former employer, BHP Coal Pty Limited, before the Federal Court of Australia. Mr McDermott contended that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. He sought reinstatement or compensation in lieu. BHP Coal, on the other hand, opposed the application, arguing that the dismissal was fair and complied with the relevant legal standards. The dispute centred on the fairness of Mr McDermott's dismissal and whether the company adhered to procedural fairness and any applicable legislative requirements.

The primary legal issues for the court to decide included whether the dismissal was justified under the Fair Work Act, and if procedural fairness was observed in the process leading to the dismissal. The court also needed to consider whether Mr McDermott's right to be legally represented during the interlocutory application stage was violated. The court had to weigh the evidence presented by both parties and apply relevant legal principles to determine the fairness of the dismissal and the procedural steps taken by the employer.

In its reasoning, the court examined the evidence provided by both parties and considered the statutory provisions and case law related to unfair dismissal. The court determined that the dismissal was indeed unfair as it did not meet the statutory requirements for procedural fairness. Additionally, the court found that Mr McDermott's right to legal representation during the interlocutory application was contravened, which had an impact on the fairness of the proceedings. Consequently, the court granted the application for relief from unfair dismissal, ordering that Mr McDermott be reinstated to his former position or compensated accordingly.

Orders