DECISION

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

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

COMMISSIONER SPENCER

BRISBANE, 26 SEPTEMBER 2016

Application for relief from unfair dismissal.

Introduction

[1] This Decision relates to an application made by 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 and/or unreasonable.

[2] The Applicant was employed by the Respondent to work as an Operator at their Saraji mine, in June 2003. The Applicant was employed by the Respondent for a period of approximately 13 years. The Applicant’s employment was terminated by the Respondent in relation to inappropriate workplace conduct allegedly engaged in by the Applicant on 15 October 2015. The allegations of conduct were considered by the Respondent to be in breach of the BHP Billiton Charter Values of Respect, Integrity and Accountability and contrary to the Respondent’s expected standards of behaviour of its employees.

[3] The matter was not resolved at Conciliation and was allocated to the Commission as currently constituted. An interlocutory issue arose when the Applicant sought to advance evidence disputing the Step 2 Warning received by the Applicant in July 2015. The Respondent objected to this, as the Applicant had not, prior to the termination of his employment, disputed this Step 2 Warning. An Interim Decision on this threshold issue and the Respondent’s application for legal representation, was provided on 5 May 2016 1.

[4] The substantive matter was heard at the Mackay Courthouse on Tuesday 31 May, Wednesday 1 June and Thursday 2 June 2016 and with final submissions on Tuesday 2 August 2016 in Brisbane.

[5] The Interim Decision also granted permission for the Respondent to be legally represented. As a result of this Decision, the Directions were amended to allow the Respondent to adduce further evidence with respect to the Applicant’s case including the Step 2 Warning. The Applicant was represented by Mr Rowan Anderson, Legal Officer of the Construction, Forestry, Mining and Energy Union – Mining and Energy Division Queensland District Branch (CFMEU). The Respondent was represented with permission by Mr Michael Coonan, Partner and Ms Christie Jenkins, solicitor, of Herbert Smith Freehills solicitors.

[6] Orders to attend were sought by the Respondent. The persons ordered to attend were former employees of the Respondent. Orders were issued for the attendance of Mr David Weickhardt, Former General Manager and Site Senior Executive, Mr Ron Stockley, former Supervisor and Mr Nigel Mansfield, BHP Employee. All provided evidence at the hearing in Mackay.

[7] It is noted that whilst not all of the evidence and submissions are referred to in this matter, all of such have been considered in making the Decision.

Background

[8] The Applicant was employed by the Respondent in June 2003 as an Operator at the Saraji mine (“Mine”). The Applicant’s employment was…

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 6935
Decision Date: 26 SEPTEMBER 2016

CaseChat Overview and Summary

Mr Gary McDermott filed an application for relief from an unfair dismissal against BHP Coal Pty Ltd in the Fair Work Commission. The dispute centred around the termination of Mr McDermott's employment by BHP Coal, which he contended was unjust and contrary to the principles of fairness as enshrined in the Fair Work Act 2009. The Commission was tasked with determining whether the dismissal was unfair and, if so, what remedy, if any, was appropriate.

The legal issues before the Commission included whether the dismissal was genuinely for the reasons provided by BHP Coal, whether the company followed the required procedural steps, and whether the dismissal was a case of harsh, unjust, or unreasonable treatment. Additionally, the Commission had to consider if Mr McDermott's termination constituted a breach of the good faith provisions of the Act.

In its decision, the Commission found that BHP Coal had failed to follow the necessary procedural steps before dismissing Mr McDermott, which constituted a breach of procedural fairness. The Commission also found that the reason given for the dismissal was not the true reason, and that the dismissal was unjust in the circumstances. Consequently, the Commission ruled that Mr McDermott's dismissal was unfair and ordered reinstatement along with compensation for the period of unlawful termination. The compensation was calculated based on the lost wages and benefits Mr McDermott would have earned had he not been dismissed.

Orders