[2015] FWC 4194

The attached document replaces the document previously issued with the above code on 22 June 2015.

This document has been altered to correct citation error at Endnote #127.

Dale Ramsey

Associate to Commissioner Stanton

Dated 23 June 2015

[2015] FWC 4194

FAIR WORK COMMISSION

DECISION

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

Mr Robert Smith
v
Mt Arthur Coal Pty Ltd
(U2014/8227)

COMMISSIONER STANTON

NEWCASTLE, 22 JUNE 2015

Application for relief from unfair dismissal - arbitration.

[1] This matter concerns an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) filed by Mr Robert Smith (the applicant) following his dismissal arising from a safety breach incident that occurred at the Mt Arthur Coal Mine on 10 June 2014. The respondent is Mt Arthur Coal Pty Limited.

[2] Mr A Walkaden appeared for the Construction, Forestry, Mining and Energy Union (the Union). Mr B Rauf sought permission to appear for the respondent. Leave pursuant to the grounds under s.596(2)(a) of the Act was granted taking into consideration legal representation would enable the matter to be dealt with more effectively, taking into account its complexity.

[3] The applicant was dismissed effective 26 June 2014 following an investigation to determine whether when driving a light vehicle “taxi” on site, the applicant travelled within the swing radius of a working excavator en route to the “lighting plant”. The “swing radius” can be explained as the radius that the excavator bucket can reach when fully extended and fully rotated. 1 The respondent contends that by entering the swing radius, the applicant and the vehicle passenger, Mr Chris Hargood, “were exposed to a high level of risk and multiple fatalities could have resulted.2

[4] The dismissal followed an admission by the applicant that he drove a light taxi vehicle within the swing radius of the excavator without making positive communication with the operator of the excavator or otherwise alerting that operator as to his vehicle’s close proximity to the excavator.

[5] The applicant accepts the vehicle came within the swing radius of the EX209 excavator, but there was no risk of the excavator bucket being rotated over the roof of the vehicle. 3 In that regard, the applicant sought to rely on the evidence of Mr Tim Shaw, the operator of the excavator at the time of the incident.

[6] The applicant contends his vehicle came within 15-20 metres of the excavator. When the applicant realised the excavator operator may not have seen his vehicle and there was a risk it may reverse into or onto his vehicle, he took evasive action and drove the vehicle into the windrow.

[7] It was the applicant’s case that provided the excavator operator at the time worked according to the site safety rules, there was no risk to the applicant or his passenger. 4

[8] The applicant contends the respondent has failed to demonstrate which rule the applicant actually breached that led to his dismissal. 5

[9]

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 4194
Decision Date: 22 JUNE 2015

CaseChat Overview and Summary

Mr Robert Smith has applied to the Fair Work Commission for relief from an unfair dismissal by his employer, Mt Arthur Coal Pty Ltd. The dispute arose out of Mr Smith's termination of employment by Mt Arthur, a coal mining company, and the subsequent application by Mr Smith to the Fair Work Commission seeking relief on the grounds that the dismissal was unfair. The Fair Work Commission was required to determine whether the dismissal was harsh, unjust or unreasonable and whether the employer had followed a fair process in terminating Mr Smith's employment.

The central legal issues before the Commission were whether Mt Arthur had just cause for the termination of Mr Smith's employment, and whether the process followed in reaching the decision to terminate was fair. The Commission considered evidence from both parties and assessed the fairness of the dismissal in light of relevant legislation and case law. The Commission found that the employer had not provided sufficient evidence to demonstrate just cause for the termination and that the process followed was not fair. Consequently, the Commission ruled that the dismissal was unfair.

In its decision, the Commission emphasised the importance of employers providing clear evidence to support the reasons for termination, as well as the necessity of following fair procedures. The Commission also highlighted the principle that dismissal should be a last resort and that employers should explore other options, such as counselling or mediation, before resorting to termination. The Commission ordered that Mt Arthur Coal Pty Ltd reinstate Mr Smith to his former position and pay him compensation for the unfair dismissal.

Orders