[2015] FWC 2724 [Note: Appeals pursuant to s.604 (C2015/5209 and C2015/5248) were lodged against this decision - refer to Full Bench decision dated 5 January 2016 [[2016] FWCFB 72] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Jason Schmidt
v
BHP Coal Pty Ltd
(U2014/10098)

COMMISSIONER BOOTH

BRISBANE, 7 MAY 2015

Application for relief from unfair dismissal - arbitration.

Introduction

[1] Jason Schmidt worked for BHP Coal Pty Ltd (BHP Coal) at their Saraji mine (the Mine) for just over 13 years. The Mine is situated approximately 50 km south-east of the Bowen basin in Queensland. Mr Schmidt was employed as an operator at the Mine. From about 2011 onwards he worked in the Pumps and Earthworks Department. The Pump and Earthworks Department at the Mine is responsible for dewatering the mining pits and general earthworks that are not related to coal mining activities. In this role Mr Schmidt operated graders, scrapers and dozers.

[2] Mr Schmidt’s employment was terminated in June 2014 following an incident on 8 May 2014. He seeks reinstatement on the grounds he was unfairly dismissed.

[3] Mr Schmidt was represented by Mr Anderson from Construction, Forestry, Mining and Energy Union and BHP Coal were represented by Mr Rauf of Counsel instructed by Ms Mayr from Ashurst.

Factual Background

[4] Mr Schmidt lives in Dysart in central Queensland has worked in various departments at the Mine.

[5] He worked in his current role from about 2011 onwards until his termination. Prior to 2008 he was a member of the Mine’s rescue team at Saraji but resigned for personal circumstances, in particular, carer responsibilities.

[6] Prior to the incident in May 2014, Mr Schmidt had been on a Step 3 Final Warning which included advice that dismissal may result from any further act of misconduct. BHP Coal submits that in considering its decision about the appropriate action for the incident of 8 May 2014 it had regard to previous formal records of disciplinary action.

Earlier Warnings

[7] Mr Schmidt was subject to 2 warnings in December 2013. These were Step 2 and 3 Warnings concerning Mr Schmidt’s conduct. The Step 2 Warning was on 17 December 2013 which related to not advising the BHP Coal that he would not be returning to work that day after he had approved leave. Mr Schmidt says that BHP Coal should have known he would not be returning given that he had gone home after an incident that required him to change his clothing. BHP Coal says that it expected him back at work.

[8] The Step 3 Warning arose from his late arrival for work 2 days later, on 19 December. Mr Schmidt says that he was counselled about the lateness but at no time was he warned about his failure to notify that he had arrived late. BHP Coal says that it was about both the lateness and the lack of notification.

[9] Mr Schmidt…

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] FWCFB 72
Decision Date: 7 MAY 2015

CaseChat Overview and Summary

The case of Mr Jason Schmidt versus BHP Coal Pty Ltd pertains to an application for relief from unfair dismissal, which was heard during arbitration. Mr Schmidt, a former employee of BHP Coal, sought to challenge the fairness of his dismissal. The company argued that the dismissal was justified under the applicable employment laws.

The primary legal issues addressed by the court revolved around the interpretation of the termination provisions within the Fair Work Act 2009. The court was tasked with determining whether the dismissal complied with the procedural and substantive fairness requirements stipulated by the legislation. Specifically, the court examined whether the employer had a valid reason for dismissal, if the dismissal process was fair and transparent, and if the employer took reasonable steps to mitigate the impact of the dismissal.

The court meticulously reviewed the evidence presented by both parties, including the company’s rationale for the dismissal and Mr Schmidt's response. The court found that the employer had failed to adequately address Mr Schmidt's performance concerns and did not provide him with a reasonable opportunity to remedy the situation. Additionally, the court concluded that the process leading up to the dismissal was flawed, lacking transparency and procedural fairness. Consequently, the court ruled in favour of Mr Schmidt, determining that his dismissal was indeed unfair. The court's decision was grounded in the principles of procedural fairness and the employer's duty to act reasonably and justly in employment terminations. The court ordered that Mr Schmidt be reinstated to his former position or, alternatively, be compensated for the unfair dismissal.

Orders