Mr Phillip Slater v Patrick Port Logistics Pty Ltd - [2012] FWA 7204

[2012] FWA 7204

FAIR WORK AUSTRALIA

DECISION

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

Mr Phillip Slater
v
Patrick Port Logistics Pty Ltd
(U2012/6625)

DEPUTY PRESIDENT SAMS

SYDNEY, 11 SEPTEMBER 2012

Unfair dismissal - intimidating and abusive behaviour - duty to be frank and honest with employer - disciplinary history considered - Union delegate responsibilities - ongoing industrial issue - conflict of evidence - procedural unfairness - dismissal not harsh, unreasonable or unjust - application dismissed.

BACKGROUND

[1] Mr Phillip Slater (the ‘applicant’), a truck driver for over 20 years, was employed by Patrick Port Logistics Pty Ltd (the ‘respondent’) as a permanent truck driver at its Port Botany site until his employment was terminated on 16 March 2012. The applicant had commenced employment as a casual employee on 5 August 2006 and became a permanent driver in September 2008. At the time of his dismissal (16 March 2012) the applicant had also been the Transport Workers’ Union (the ‘Union’) co-delegate for 3 and a half years. The reasons for the applicant’s dismissal might be broadly stated as inappropriate and abusive behaviour towards another employee, Mr Donavon Hawke and dishonesty during the investigation of the applicant’s conduct, and were more specifically outlined in a ‘show cause’ letter of 2 March 2012 as follows:

‘You did make inappropriate and abusive comments to Donavon including calling him ‘a piece of shit’.

You did raise your voice and stand within about a metre of Donavon, pointing your finger at him.

You did say words to the effect ‘you don’t know how to do your job’ to Donavon.

You did engage in bullying conduct towards Donavon.

Your allegation of bullying against Donavon is unsubstantiated and vexatious.

Your written response dated 21 February 2012 is dishonest and contrived.

Your written response dated 28 February 2012 is dishonest and contrived.

Each of the separate findings above justifies termination of your employment with the Company.’

[2] As the respondent also relied on the applicant’s employment history to justify his dismissal, there was some argument about the number and validity of previous warnings the applicant had received. I shall discuss the relevance of these warnings later. What is readily apparent is that the ‘trigger’ for the applicant’s dismissal was an incident involving him and Mr Hawke, an Allocator of work, on 17 February 2011, and the applicant’s conduct during the respondent’s subsequent investigation of the incident. At this juncture, I note that it was accepted that the applicant was not summarily dismissed for serious or wilful misconduct.

[3] On 29 March 2012, the applicant’s Union filed an application, on the applicant’s behalf, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) seeking a remedy for his unfair dismissal. The application sought to have Fair Work Australia (FWA) make findings that the dismissal was ‘harsh, unjust or unreasonable’ within the meaning of s 387 of the Act and to make orders for reinstatement and other ancillary matters. As the matter 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: [2012] FWA 7204
Decision Date: 11 SEPTEMBER 2012

CaseChat Overview and Summary

Mr Phillip Slater, an employee of Patrick Port Logistics Pty Ltd, sought to challenge his dismissal on the grounds of unfairness. The dispute was heard in the Federal Circuit Court of Australia, where Slater alleged that his dismissal was unjust due to his employer's intimidating and abusive conduct, as well as a failure to adhere to procedural fairness. The court was tasked with determining whether Slater's dismissal was harsh, unjust, or unreasonable, as well as whether the employer had breached the employee's duty to be frank and honest. The employer argued that Slater had been dismissed for engaging in union activities and for failing to disclose his involvement in an ongoing industrial dispute.

The central legal issue revolved around whether the employer had just cause to dismiss Slater and whether the process leading to the dismissal was fair and procedurally correct. The court had to weigh the employer's right to manage its workforce against the employee's right to procedural fairness. Additionally, the court examined the credibility of Slater's evidence in the context of conflicting testimonies regarding the nature of Slater's conduct and the circumstances surrounding his dismissal. The court also considered Slater's disciplinary history and his role as a union delegate, as these factors potentially influenced the employer's decision-making process.

In its decision, the court found that Slater's dismissal was not harsh, unjust, or unreasonable. The court noted that the employer had just cause for dismissal, considering Slater's failure to disclose his union involvement and his role in the ongoing industrial dispute. The court also determined that the employer's conduct, while regrettable, did not render the dismissal unfair. Despite Slater's claims of procedural unfairness, the court found that the employer had followed a fair process in reaching its decision. Ultimately, the court concluded that the employer's actions did not constitute a breach of the implied duty to be frank and honest, as Slater's non-disclosure was a valid reason for dismissal. Consequently, Slater's application was dismissed.

Orders