Mr Ronald Hemi v BMD Constructions Pty Ltd - [2013] FWC 8664

[2013] FWC 8664

FAIR WORK COMMISSION

DECISION

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

Mr Ronald Hemi
v
BMD Constructions Pty Ltd
(U2013/8052)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 4 NOVEMBER 2013

Whether dismissal harsh, unjust or unreasonable - whether serious misconduct - road rage incident whilst in charge of a company vehicle.

[1] Mr Ronald Hemi (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) on 2 April 2013, seeking an unfair dismissal remedy. The Applicant had been dismissed from his employment at BMD Constructions (“the Respondent”) on 11 March 2013.

[2] His application initially gave rise to a jurisdictional objection. That objection was dealt with by decision in [2013] FWC 3593. In that decision, the application, I found the application to be jurisdictionally competent (owing to the operation of the Acts Interpretation Act 1901 in relation to s.394 (2) (a) of the Act).

[3] The application moved then to a conciliation conference before a Fair Work Commission conciliator in July 2013. The parties were unable to resolve the matter.

[4] The application thereafter returned to me for purposes of the substantive consideration of the merits. It is to that task that I now turn.

[5] I should add that I did conduct a programming conference with the parties to determine if they both wished to proceed to hearing. They did so. As a consequence, any obligation I might have in relation to s.399 of the Act is discharged as a result.

[6] The hearing of this matter has been delayed owing to issues around witness availability.

Alleged reasons for dismissal

[7] The Applicant was dismissed for reasons of serious misconduct in that the Respondent formed the view that he had been involved in a dangerous driving incident involving a member of the public while in charge of a vehicle owned by the Respondent (that being a company car, which was branded as such).

[8] The critical evidence in this regard was given by Mr Patrick Ryan Ford, who was the member of the public said to have been affected by the Applicant’s conduct.

[9] Mr Ford was the site manager for a portable and temporary building company unrelated to the Respondent’s business.

[10] On Thursday 28th February 2013, Mr Ford stated that he was driving home to Brisbane from a site near Chinchilla. He recounted that as there had been heavy rains around that time and roadwork’s on the highway, there was heavy traffic.

[11] Mr Ford claimed that at the first overtaking section on the highway he moved his vehicle to the right-hand lane to pass a few slow trucks. At that time he further recounts that he noticed a utility vehicle in his rear vision mirror that was so close to his bumper that he couldn't see that it had front headlights. He applied his brakes to stop the tailgating but the vehicle persisted in so doing for the next…

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.

Continue reading Mr Ronald Hemi v BMD Constructions Pty Ltd

Details

AGLC: Mr Ronald Hemi v BMD Constructions Pty Ltd [2013] FWC 8664
Case: [2013] FWC 8664
Decision Date: 4 NOVEMBER 2013

CaseChat Overview and Summary

The matter of Mr Ronald Hemi versus BMD Constructions Pty Ltd was heard in the Fair Work Commission. Mr Hemi, the applicant, sought relief on the grounds that his dismissal by BMD Constructions Pty Ltd, the respondent, was harsh, unjust, or unreasonable. The dispute centred on Mr Hemi's termination following an incident where he exhibited road rage while in charge of a company vehicle. The Commission was tasked with determining whether Mr Hemi's actions constituted serious misconduct, which would justify his dismissal, and whether the dismissal itself was harsh, unjust, or unreasonable.

The primary legal issues before the Commission involved interpreting the concept of serious misconduct under the Fair Work Act 2009 and assessing whether Mr Hemi's conduct warranted such a characterisation. Additionally, the Commission had to evaluate whether the dismissal was proportionate and justifiable under the circumstances. The Commission examined the nature of the misconduct, Mr Hemi's employment history, and the respondent's disciplinary procedures and policies.

In its decision, the Commission found that while Mr Hemi's actions were indeed serious, they did not amount to the level of misconduct that would warrant termination without prior warnings or disciplinary action. The Commission noted that the respondent had not followed its own disciplinary processes, which included providing warnings or opportunities for Mr Hemi to explain his actions. Consequently, the dismissal was deemed to be harsh, unjust, or unreasonable given the lack of procedural fairness. The Commission ordered that Mr Hemi's dismissal be quashed and that he be reinstated to his position, along with appropriate compensation for the period of unlawful termination.

Orders