Mr Robert Shaw v Downer EDI Mining Pty Ltd - [2014] FWC 3382

[2014] FWC 3382

FAIR WORK COMMISSION

DECISION

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

Mr Justin Fisher; Mr James Davis; Mr Robert Shaw
v
Downer EDI Mining Pty Ltd
(U2013/1781, U2013/1787, U2013/1788)

COMMISSIONER CAMBRIDGE

SYDNEY, 23 MAY 2014

Unfair dismissal - cases of non-genuine redundancy found - further consideration of criteria for harshness etc - operational based dismissals - s. 387 elements primarily directed to conduct and performance based dismissals - dismissals unfair - particular circumstances involving loss of employment - reinstatements Ordered.

[1] This Decision involves three applications for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The applications were made by the Construction, Forestry, Mining & Energy Union (CFMEU) on behalf of, respectively, Justin Fisher, James Davis and Robert Shaw (the applicants). The applicants were the subject of an earlier Jurisdictional Decision [2013 FWC 8020] (the Jurisdictional Decision), which held that each of the dismissals of the applicants was not a case of genuine redundancy. The respondent employer is Downer EDI Mining (Downer Mining or the employer).

[2] On 1 April 2014, the Fair Work Commission (the Commission) issued a further Decision [2014 FWC 2159] (the Representational Decision), which granted permission for the employer to be represented by a lawyer or paid agent. The Hearing of the substantive aspects of the applications was conducted in Sydney over three days, 14, 15 and 16 April 2014.

[3] At the substantive Hearing, Mr K Endacott, from the CFMEU continued his appearance for the applicants. Mr Endacott called each of the applicants as witnesses who provided evidence in support of their respective claims. The employer was represented byMr R Warren, counsel, who called a total of five witnesses who provided evidence on behalf of the employer.

Factual Background

[4] The circumstances surrounding the dismissals of the applicants on 17 May 2013 are set out in the Jurisdictional Decision. In relevant summary, the employer dismissed each of the applicants as part of the retrenchment of 106 employees.

[5] The employer is part of a large Corporation which employs more than 20,000 people in Australia, New Zealand and the Asia Pacific region.

[6] The dismissals of the applicants were for operational reasons which were created by a decision to decrease production at the Boggabri Coal Mine (the Mine). Two months after the retrenchments, a decision was made to increase production at the Mine. The employer then commenced to employ persons in the roles that the applicants had previously performed.

[7] Evidence that was provided during the substantive Hearing has established that each of the applicants has, to varying degrees, applied for vacancies that have arisen at the Mine since the decision to increase production was made. The applicants have not been successful in obtaining employment back at the Mine, although other individuals, who were made redundant at the same time as the applicants, have been “re-hired” by the employer.

[8] Since their retrenchments in May 2013, each of the applicants have…

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: [2014] FWC 3382
Decision Date: 23 MAY 2014

CaseChat Overview and Summary

Mr Robert Shaw initiated proceedings against Downer EDI Mining Pty Ltd in the Fair Work Commission, contesting his dismissal as unfair. The case centred around Mr Shaw's termination, which he argued was unjustified and harsh, unjust, or unreasonable. The tribunal was tasked with determining the validity of the dismissal, assessing the criteria for harshness, and considering the overall fairness of the termination under the Fair Work Act.

The primary legal issues revolved around whether Mr Shaw's dismissal was genuinely redundant, as claimed by the employer. The court needed to examine the dismissal's fairness, focusing on the employer's conduct and the dismissal's proportionality. It was also necessary to consider the broader implications of the dismissal on Mr Shaw's employment status and whether it was justified under the circumstances. The tribunal had to determine if the dismissal met the criteria for being harsh, unjust, or unreasonable, especially given Mr Shaw's long service and the employer's failure to consider alternative options.

In delivering the decision, the tribunal found that Mr Shaw's dismissal was not genuinely redundant. It concluded that the employer had not adequately considered the dismissal's impact on Mr Shaw and had failed to provide sufficient evidence to support the redundancy claim. The tribunal noted that the employer's actions demonstrated a lack of procedural fairness and highlighted the disproportionate nature of the dismissal. The tribunal found the dismissal to be harsh, unjust, and unreasonable, leading to the conclusion that it was unfair. Consequently, the tribunal ordered the employer to reinstate Mr Shaw to his previous position and compensate him for the loss of income during the period of the unfair dismissal.

Orders