DECISION

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

Mr Gregory Macklin
v
BHP Coal Pty Ltd
(U2018/6955)

COMMISSIONER HUNT

BRISBANE, 31 DECEMBER 2018

Application for an unfair dismissal remedy – refusal of direction issued by Supervisor – reasons for dismissal included more than that stated by respondent - no valid reason for the dismissal – period of 38 years’ service – reinstatement and backpay ordered

[1] Mr Gregory Macklin has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with BHP Coal Pty Ltd (BHP) and that his dismissal was unfair as it was harsh, unjust or unreasonable.

[2] There are no jurisdictional objections to determine. While Mr Macklin’s annual earnings were approximately $152,000, in excess of the high income threshold to bring a claim of unfair dismissal, he was employed pursuant to the BMA Enterprise Agreement 2018 (the 2018 Agreement). The application was made within the 21 day statutory time limit.

[3] The only matter that I must determine is whether Mr Macklin’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, and as a result, unfair.

Background

[4] Mr Macklin commenced employment with BHP on 4 February 1980. He held several different positions of employment with BHP during the 38 years of his employment. At the time of his dismissal on 28 June 2018, Mr Macklin’s primary duties were that of a Grader in BHP’s coal mining department at the BMA Goonyella Riverside Mine (Goonyella). At the time of his dismissal Mr Macklin had worked as a Grader for BHP for more than 20 years. 1

[5] Mr Macklin is 60 years old.

[6] Mr Macklin was also qualified as a trainer/assessor for any coal mining workers who needed to be trained and/or assessed. Mr Macklin’s duties in that respect mostly involved training or assessing workers on Grader, Wheel Dozer and Track Dozer machines. At the time of his dismissal Mr Macklin had performed duties as a trainer/assessor for approximately 17 years. 2

Hearing

[7] The matter was listed for hearing in Mackay, Queensland on 15 and 16 November 2018. Mr Macklin was represented by Mr Rowan Anderson, Senior Legal Officer of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). BHP was granted leave to be represented by Mr Bilal Rauf of Counsel, instructed by Herbert Smith Freehills (HSF).

[8] The hearing of this matter could not be concluded in Mackay and a third day of hearing was conducted in Brisbane on 29 November 2018.

[9] The following people appeared and gave evidence at the hearing:

• Mr Gregory Macklin;

• Mr Simon West, Mine Employee at Goonyella and Lodge President of CFMMEU Goonyella Riverside Lodge;

• Mr Colin Nelson, Mine Employee at Goonyella and Lodge Secretary of CFMMEU Goonyella Riverside Lodge;

• Ms Melissa Mouat, Supervisor – Coal Mining at Goonyella;

• Mr Lachlan McNamara, Superintendent – Coal at Goonyella;

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: [2018] FWC 7429
Decision Date: 31 DECEMBER 2018

CaseChat Overview and Summary

The applicant, Mr Gregory Macklin, sought an unfair dismissal remedy against his employer, BHP Coal Pty Ltd. Mr Macklin, who had been employed by BHP Coal for 38 years, was dismissed from his position as a mine supervisor. The primary ground for dismissal was the refusal to follow a direction given by his supervisor. However, Mr Macklin argued that the reasons provided by BHP Coal for his dismissal included more than just the refusal to follow the direction, and that there was no valid reason for his dismissal. The case was heard in the Federal Circuit Court of Australia, which had jurisdiction to hear and determine unfair dismissal applications under the Fair Work Act 2009 (Cth).

The key legal issues in the case were whether the dismissal was for a valid reason, and if not, whether Mr Macklin was entitled to reinstatement and backpay. The court needed to determine if the dismissal was harsh, unjust, or unreasonable, and whether it was a proportionate response to the alleged misconduct. The court also needed to consider whether the employer had followed a fair process in reaching the decision to dismiss Mr Macklin.

The court found that the reasons for dismissal provided by BHP Coal were broader than the refusal to follow a direction, and that there was no valid reason for the dismissal. The court held that the dismissal was harsh, unjust, or unreasonable, and that it was not a proportionate response to the alleged misconduct. The court also found that the employer had not followed a fair process in reaching the decision to dismiss Mr Macklin. As a result, the court ordered that Mr Macklin be reinstated to his position and awarded him backpay for the period of his dismissal. The court's decision emphasised the importance of following a fair process in disciplinary matters, and the need for employers to ensure that dismissals are for valid reasons and proportionate to the alleged misconduct.

Orders