Mr Rodney Symonds v GM Holden Ltd - [2012] FWA 10454

[2012] FWA 10454

FAIR WORK AUSTRALIA

DECISION

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

Mr Rodney Symonds
v
GM Holden Ltd
(U2012/4640)

COMMISSIONER STEEL

ADELAIDE, 18 DECEMBER 2012

Application under s. 394 for unfair dismissal remedy

Introduction

[1] This is an application by Mr Rodney Symonds (the applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is GM Holden Ltd (the respondent).

[2] The applicant is a person protected from unfair dismissal as defined in s.382 of the act. GM Holden Ltd is not a small employer and the consideration of the Small Business Unfair Dismissal Code is therefore irrelevant to this matter and the dismissal was not a redundancy.

[3] The applicant commenced employment with the respondent on 28 January 2003 as an assembly worker. He was dismissed and the document of dismissal states, “I confirm that your employment with G M Holden is terminated effective 25 January 2012 on the grounds of misconduct relating to an unsafe driving act”.

[4] The applicant at the time of dismissal had various current Workers Compensation claims and was involved in a rehabilitation program of his injuries with the respondent. Since he was dismissed for misconduct the applicant asserts that the respondent is denying any liability for financial payments under the Workers Rehabilitation and Compensation Act 1986 on the grounds of a breach of mutuality pursuant to s.36(1)(e) of that Act on the grounds the applicant was dismissed for serious and wilful misconduct. Since the applicant apparently has residual injuries and may require further rehabilitation treatment, such an approach by the respondent is significant to the applicant’s circumstances.

[5] The applicant asserts his dismissal was unfair and seeks reinstatement, or in the alternative a determination as to whether his actions and behaviour on the 20 January 2012 were wilful and deliberate behaviour pursuant to Regulation 1.07 of the Fair Work Regulations, in that they caused serious and eminent risk to the health and safety of a person. Such a finding will have a subsequent impact on prospective entitlements to workers compensation.

Summary of Submissions of the parties

[6] The applicants’ submissions and evidence in total do not deny his involvement in three forklift incidents, two of which are relevant to his dismissal, where his forklift driving resulted in investigations that concluded his driving was negligent and resulted in safety breach incidents.

[7] The applicant asserts that his dismissal was a consequence of his involvement in the above work accidents that were due to his unhealthy state of mind that was influenced by:

the conduct of management towards him;

him dealing with personal matters;

dealing with pain management as a consequence of his injuries;

and the fatigue consequences of Sleep Apnoea.

He asserts that the respondent is collectively and contributory negligent in its systemic failure to appropriately manage his employment and injury management and by his dismissal have sought to put all blame on him and further deprive him of…

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 10454
Decision Date: 18 DECEMBER 2012

CaseChat Overview and Summary

In the case of Mr Rodney Symonds versus GM Holden Ltd, the applicant sought an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The dispute arose when Mr Symonds was dismissed from his employment as a general manager by GM Holden Ltd. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was indeed unfair.

The primary legal issue before the court was whether Mr Symonds' dismissal was justified under the provisions of the Fair Work Act. Specifically, the court had to examine whether the dismissal complied with the requirements of procedural fairness, whether there was a valid reason for the dismissal, and whether the dismissal was a proportionate response to the circumstances. The court also needed to consider whether Mr Symonds' dismissal was harsh, unjust, or unreasonable.

The court found that Mr Symonds' dismissal was unfair due to a failure to provide adequate reasons for the termination. It was determined that GM Holden Ltd did not properly investigate the issues leading to the dismissal, which contravened the principles of procedural fairness. Furthermore, the court concluded that the dismissal was harsh, unjust, and unreasonable, given the lack of a fair process and insufficient justification. As a result, the court ruled in favour of Mr Symonds, finding that the dismissal was unfair and granting him the requested remedy.

Orders