Mr Neil Bartley v Helensburgh Coal Pty Ltd - [2020] FWCFB 7072

[2020] FWC 5756 [Note: This decision has been quashed - refer to Full Bench decision dated 19 May 2021 [2021] FWCFB 2871]

FAIR WORK COMMISSION

0BDECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Neil Bartley & Ors

v
Helensburgh Coal Pty Ltd

(U2020/9414) (U2020/9415) (U2020/9416) (U2020/9417) (U2020/9418) (U2020/9419) (U2020/9420) (U2020/9421) (U2020/9422) (U2020/9423) (U2020/9424) (U2020/9425) (U2020/9426) (U2020/9427) (U2020/9428) (U2020/9429) (U2020/9430) (U2020/9431) (U2020/9432) (U2020/9434) (U2020/9435) (U2020/9436) (U2020/9437) (U2020/9438)

COMMISSIONER RIORDAN

SYDNEY, 24 DECEMBER 2020

Application for an unfair dismissal remedy.

On 24 June 2020, Mr Neil Bartley, Mr Jake Bennett, Mr James Brajak, Mr Peter Burke, Mr Christopher Dale, Mr Kenneth Dryden, Mr Luke Duffy, Mr Leonard Farrance, Mr Stephen Gilmour, Mr Brendan Gornall, Mr Taylor Gosling, Mr Murray Gray, Mr Tim Henderson, Mr Joshua Hogg, Mr Stuart Kemp, Mr Clint Luck, Mr Ryan Martin, Mr James Mate, Mr Christopher Murdoch, Mr Gregory Remfry, Mr Ryan Schuster, Mr Boro Selak, Mr Simon Walder and Mr Alex Windisch (together the Applicants), were notified by their former employer Helensburgh Coal Pty Ltd (Peabody) (the Respondent), that their employment was to be terminated. Prior to their termination, the Applicants worked at the Respondent’s Metropolitan Coal Mine (the Mine) located in the Illawarra region of New South Wales.

On or about 10 July 2020, the Applicants filed applications (the Applications) with the Fair Work Commission (the Commission) for Unfair Dismissal remedies pursuant to section 394 of the Fair Work Act 2009 (the Act).

The Applicants were represented by Mr Adam Walkaden of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU). Pursuant to section 596 of the Act, the Respondent was granted permission to be represented by Mr Dan Williams of MinterEllison.

At the commencement of the Hearing, the parties agreed for the Applications to be heard together on the basis that the facts and decision-making process was largely common to all of the Applicants.

The Respondent objected to the Applications on jurisdictional grounds, stating that each of the terminations were genuine redundancies within the meaning of section 389 of the Act. This decision deals only with the Respondent’s jurisdictional objection.

Background

The Respondent extracts coking coal at the Mine. Coking cole is used to make steel. The COVID-19 pandemic has negatively impacted the demand and price of coking coal. As a result, the Respondent determined to decrease its level of production and its workforce at the Mine.

After a period of employee consultation, the Respondent determined that:

a)90 of its directly employed staff would be made redundant. Of these 90 employees, 47 individuals, including the Applicants, were subject to a forced redundancy: and

b)Its contractor workforce would be reduced by 40%.

In November 2019, the Respondent entered into a service agreement with a conveyer belt contractor called Mentser, where Mentser would undertake belt cleaning and belt improvement work at the Mine. The contact commenced in April 2020. On 24 June 2020, only 8 Mentser…

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: [2020] FWCFB 7072
Decision Date: 24 DECEMBER 2020

CaseChat Overview and Summary

The case of Mr Neil Bartley v Helensburgh Coal Pty Ltd involved an application for an unfair dismissal remedy. Mr Bartley, a former employee of Helensburgh Coal, sought to challenge his termination on the grounds that it was unfair. The proceedings took place in the Fair Work Commission, Australia's workplace relations tribunal.

The central legal issues before the Commission were whether Mr Bartley's dismissal was justified under the provisions of the Fair Work Act 2009, specifically focusing on whether the employer had a valid reason related to his capacity, conduct, or some other substantial reason. Additionally, the court had to consider whether the dismissal process was procedurally fair and if the employer complied with the requirements set out in the Act.

The Commission found that Helensburgh Coal had valid reasons to dismiss Mr Bartley, primarily due to his conduct which included multiple instances of insubordination and breaches of company policy. Furthermore, the Commission determined that the employer had followed a fair process in dismissing Mr Bartley, which included providing him with adequate opportunities to respond to the allegations against him. The Commission concluded that the dismissal was both procedurally and substantively fair, thereby dismissing Mr Bartley's application for an unfair dismissal remedy.

The Fair Work Commission upheld the employer's decision and dismissed the application, affirming that the dismissal was fair and lawful. The Commission did not order any remedy in favour of Mr Bartley.

Orders