Mr Robert Van Den Enden v Bechtel Construction (Australia) Pty Ltd - [2013] FWCFB 8053

[2013] FWCFB 8053

The attached document replaces the document previously issued with the above code on 21 October 2013.

Due to a clerical error the date of issue indicated on the decision was incorrect.

Christian Taylor

Relief Associate to DEPUTY PRESIDENT SMITH

21 October 2013

[2013] FWCFB 8053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decisions

Mr Robert Van Den Enden
v
Bechtel Construction (Australia) Pty Ltd
(C2013/5596)
Bechtel Construction (Australia) Pty Ltd
v
Mr Robert Van Den Enden
(C2013/5932)

DEPUTY PRESIDENT SMITH
DEPUTY PRESIDENT LAWRENCE
COMMISSIONER BULL

MELBOURNE, 21 OCTOBER 2013

Appeal against decision [[2013] FWC 4377] of Senior Deputy President Richards at Brisbane on 26 July 2013 in matter number U2013/688—cross appeal—treatment of misconduct.

Introduction

[1] These are appeals for which permission is required. 1 The appeals are against a decision [[2013] FWC 4377] of Senior Deputy President Richards in which he considered an application by Mr R Van Den Enden for relief in relation to what he alleged was his unfair dismissal by Bechtel Construction (Australia) Pty Ltd (Bechtel). The Senior Deputy President determined that Mr Van Den Enden had been dismissed harshly, unjustly or unreasonably and made an order [PR539459] for compensation in lieu of reinstatement of an amount equivalent to six weeks of his usual earnings. The amount was to be paid within 22 calendar days of the date of the order.

[2] Mr Van Den Enden’s appeal [C2013/5596] challenges the decision of the Senior Deputy President not to reinstate him in his employment and, in the alternative, the level of compensation awarded. Bechtel’s appeal [C2013/5932] (the cross appeal) challenges the decision of the Senior Deputy President as to the level of compensation awarded, arguing that it was excessive given the failure of Mr Van Den Enden to take reasonable steps to mitigate the loss suffered because of the dismissal [see s.392(2)(d)].

[3] At the commencement of the proceedings in Brisbane the Full Bench:

granted permission for the parties to be represented by counsel;

granted an extension of time to lodge the cross appeal; and,

granted permission for Mr Van Den Enden to amend his grounds of appeal.

Background

[4] Mr Van Den Enden was employed by Bechtel as a rigger from 28 February 2012 until 21 February 2013 when he was summarily dismissed from his employment for serious misconduct. The matter was heard by Senior Deputy President Richards on 17, 18 and 19 July 2013 and the Senior Deputy President delivered judgment on 26 July 2013.

[5] The basis of his termination of employment is contained in a letter dated 4 March 2013. It is said that Mr Van Den Enden’s employment was terminated for unauthorised absence and serious misconduct. The unauthorised absence was said to have occurred on 19 February 2013 and the serious misconduct occurred on 21 February 2013. The serious misconduct was identified as Mr Van Den Enden attending work for a pre-start meeting against an instruction for him to remain at…

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: [2013] FWCFB 8053
Decision Date: 21 OCTOBER 2013

CaseChat Overview and Summary

The matter before the court was an appeal against a decision by Senior Deputy President Richards at the Fair Work Commission. Mr Robert Van Den Enden, an employee, appealed the decision in relation to a cross appeal regarding his treatment for misconduct. The respondent, Bechtel Construction (Australia) Pty Ltd, the employer, also filed a cross-appeal regarding the handling of misconduct. The dispute arose from Mr Van Den Enden's termination and the subsequent legal proceedings that followed.

The primary legal issues before the court were the validity of Mr Van Den Enden's dismissal and the employer's handling of misconduct allegations. Specifically, the court needed to determine whether the dismissal was justified and whether the employer acted appropriately in managing the misconduct. The court also had to consider the procedural fairness of the dismissal process and the employer's adherence to the relevant employment laws.

The court carefully examined the evidence and arguments presented by both parties. It assessed the employer's actions in addressing the misconduct, including the investigation process and the decision to terminate Mr Van Den Enden's employment. The court also evaluated the employer's compliance with the procedural requirements set out in the applicable employment laws. Ultimately, the court found that the employer's actions were reasonable and lawful, affirming the original decision to dismiss Mr Van Den Enden. The court also upheld the employer's handling of the misconduct allegations, concluding that the employer had acted appropriately.

Orders