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 disputed these incidents at the time but took no other action to dispute them formally.

[10] Additionally, Mr Schmidt had been counselled prior to the warning but BHP Coal indicated that it…

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: [2015] FWC 2724
Decision Date: 7 MAY 2015

CaseChat Overview and Summary

In the matter of Mr Jason Schmidt versus BHP Coal Pty Ltd, the Fair Work Commission was tasked with resolving an application for relief from unfair dismissal. Mr Schmidt sought relief from the dismissal, arguing that it was unjust and that his rights as an employee were infringed. The case was brought before the Commission for arbitration, a process intended to ensure fair resolution of employment disputes.

The central legal issues before the Commission were whether Mr Schmidt's dismissal was indeed unfair and whether the respondent, BHP Coal Pty Ltd, had contravened the provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the dismissal was harsh, unjust, or unreasonable, and whether there were legitimate reasons related to the employee’s performance or conduct, or some other genuine operational reason. Additionally, the fairness of the process leading to the dismissal was examined to ensure procedural fairness was observed.

The Commission deliberated on the evidence presented by both parties, considering the nature of Mr Schmidt's employment, the circumstances surrounding his dismissal, and the company's justification for the termination. The Commission found that the dismissal was not unfair, as the employer demonstrated that it had followed appropriate procedures and had legitimate reasons for the termination. The Commission concluded that the employer acted reasonably and in accordance with the law, thereby upholding the dismissal.

No further orders were made by the Commission beyond affirming the dismissal as fair. The decision highlighted the importance of procedural fairness and the need for employers to substantiate their reasons for dismissal in line with employment laws.

Orders