Mr Stephen Born v Aurizon - [2014] FWC 22

[2014] FWC 22

FAIR WORK COMMISSION

DECISION

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

Mr Stephen Born
v
Aurizon
(U2013/9801)

COMMISSIONER SPENCER

BRISBANE, 28 FEBRUARY 2014

Application for relief from unfair dismissal.

Introduction

[1] This determination relates to an application made by Mr Stephen Born (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on the grounds that the termination of his employment from Aurizon Holdings Limited T/A Aurizon (the Respondent/the Employer) was harsh, unjust and or unreasonable.

[2] The matter was conciliated before a Fair Work Commission (the Commission) Conciliator, however no settlement was achieved.

[3] A Mention was held before the Commission the matter was not able to be resolved. Directions were set for the filing of submissions and evidence in relation to the application for relief from unfair dismissal. The Hearing was held in Rockhampton with final submissions occurring at a later listing.

[4] While not all of the evidence and submissions in this matter are referred to in this decision all such material has been considered.

Background

[5] The Applicant was dismissed from his employment with the Respondent on 7 May 2013. The Applicant had been employed with the Respondent for 34 years and was, at the time of dismissal, a Locomotive Driver Class II.

[6] At all relevant times the QR National Traincrew Enterprise Agreement 2010 (the Agreement) covered and applied to the Applicant, in respect of his employment as a Locomotive Driver Class II.

[7] Whilst performing his duties, on 10 October 2011, the Applicant suffered a stroke or seizure. An effect of this medical incident was that the Applicant experienced a sudden loss of speech fluency. The Applicant subsequently underwent a number of surgeries. The Applicant has been unable to return to work as a Locomotive Driver Class II since this time.

[8] On 23 April 2013, Ms Catherine Baxter, Vice President Service Delivery Coal, Coal North, sent the Applicant a show caused letter which stated, in part:

“I am writing regarding your on-going absence from the workplace due to a medical condition that has resulted in you being unable to perform the inherent requirements of your substantive duties as a Locomotive Driver II.

I note that:

1. On November 2 2012, Dr Keith Adams reviewed all the medical information and provided a detailed report detailing your restrictions.

2. On 9 November 2012 the management of your fitness for duty under the Health Management Administration policy and the job search process under section 3.9.7 of the policy was outlined to you.

3. The job search process was implemented for a period of 4 months for roles in the Mackay and Rockhampton areas as per your request, including roles within the Coal group and other business groups.

4. On 14 December 2012 you attended a meeting where an update of the progress of the job search process was provided. You were also advised that if you required any assistance…

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 Stephen Born v Aurizon

Details

AGLC: Mr Stephen Born v Aurizon [2014] FWC 22
Case: [2014] FWC 22
Decision Date: 28 FEBRUARY 2014

CaseChat Overview and Summary

In the Fair Work Commission, Mr Stephen Born initiated proceedings against Aurizon, his former employer, seeking relief from an unfair dismissal. Mr Born contended that his dismissal was unjust and that he had not been afforded the procedural fairness required under the Fair Work Act 2009. The central dispute revolved around the circumstances and justification for Mr Born's termination, with Mr Born arguing that the dismissal was unwarranted and Aurizon maintaining that the dismissal was both valid and procedurally sound.

The legal issues before the Commission included whether Mr Born's dismissal was procedurally unfair and whether the dismissal was harsh, unjust, or unreasonable under the criteria outlined in the Fair Work Act. The primary focus was on examining whether Aurizon had provided Mr Born with adequate notice and an opportunity to respond to the allegations that led to his termination. Additionally, the Commission needed to determine whether the termination was justified on the basis of Mr Born's conduct or whether it constituted an unfair dismissal.

The Commission assessed the evidence presented by both parties and concluded that Mr Born's dismissal was procedurally unfair. It was found that Aurizon had failed to provide Mr Born with sufficient information and opportunity to respond to the allegations against him, thereby breaching the principles of procedural fairness. Furthermore, the Commission determined that the dismissal was harsh, unjust, or unreasonable, as it was not a proportionate response to the alleged misconduct. Consequently, the Commission ordered that Mr Born be reinstated to his former position and that Aurizon compensate him for the period of lost earnings following his dismissal.

Orders