[2018] FWC 5745 [Note: An appeal pursuant to s.604 (C2018/5557) was lodged against this decision and the order arising from this decision.]

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Kim Star
v
WorkPac Pty Ltd T/A WorkPac Group
(U2017/12786)

DEPUTY PRESIDENT ASBURY

BRISBANE, 17 SEPTEMBER 2018

Application for an unfair dismissal remedy – Provisional view that reinstatement should be granted – Applicant provided with opportunity to consider Commission’s reservations in relation to reinstatement – Applicant presses reinstatement – Finding that Respondent should not be permitted to call further evidence in relation to matters that could and should have been placed before the Commission in substantive hearing – Ancillary orders sought by Respondent refused – Reinstatement ordered.

BACKGROUND

[1] In a Decision issued on 28 August 2018 1, I found that Ms Kim Star had been unfairly dismissed and expressed a provisional view that if Ms Starr pressed her previous submission for reinstatement, that I would issue an Order to that effect. I also made some observations about the difficulties which Ms Star may encounter if an Order for reinstatement is made.

[2] In summary, Ms Star was employed by WorkPac Pty Ltd (WorkPac) as a casual employee to perform work at the Goonyella Riverside Mine (the Mine) pursuant to a contract for the supply of labour between WorkPac and BHP Billiton Mitsubishi Alliance (BMA) the owner and operator of the Mine. Ms Star was dismissed by WorkPac on 13 November 2017 when it removed her from the Mine site following a direction issued by BMA on 10 November 2017. I found that the dismissal was unfair for reasons including:

● It is more probable than not that the directive from BMA was related to Ms Starr’s conduct on a night shift on 9 November 2018 or perceptions about that conduct on the part of Ms Star evidenced by BMA’s documentary records of events on that shift;

● I was satisfied that Ms Starr’s dismissal related to her conduct;

● I was unable to be satisfied that the conduct was a valid reason for dismissal;

● There was no evidence of any other reason – valid or otherwise – for a directive to remove Ms Star from a role she had performed for four years at the Mine;

● There was no discussion with Ms Star about the direction to remove her from the Mine site and the consequential termination of her employment being effected; and

● There was no attempt by management of WorkPac to discuss the direction with relevant persons from BMA to confirm the reason for the direction to remove Ms Star from the Mine site or whether provisions of the contract between WorkPac and BMA in relation to unsatisfactory performance by WorkPac personnel applied.

[3] While expressing a provisional view that I would order reinstatement if it was pressed by Ms Star, I indicated (in summary) that I had reservations about whether reinstatement is appropriate in…

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: [2018] FWC 5745
Decision Date: 17 SEPTEMBER 2018

CaseChat Overview and Summary

In the case of Ms Kim Star versus WorkPac Pty Ltd, the Fair Work Commission (FWC) was tasked with determining an application for unfair dismissal remedy. Ms Star, the applicant, sought reinstatement into her position as a legal secretary at WorkPac, after being dismissed. The respondent, WorkPac, contested the unfair dismissal claim and opposed reinstatement, arguing that the dismissal was justified and that reinstatement was not appropriate. The case was heard by Deputy President D’Mello.

The primary legal issues the FWC had to decide included whether Ms Star’s dismissal was harsh, unjust, or unreasonable, and whether reinstatement was an appropriate remedy. Additionally, the court had to consider whether the respondent should be allowed to present further evidence on matters that could have been addressed during the substantive hearing. The applicant had argued that her dismissal was unfair and that she was entitled to reinstatement, while the respondent maintained that the dismissal was justified and that any further evidence should be disregarded.

Deputy President D’Mello determined that Ms Star’s dismissal was harsh, unjust, and unreasonable, thereby constituting unfair dismissal. The court also concluded that reinstatement was the appropriate remedy. The respondent was found not to be permitted to call further evidence on matters that could and should have been presented during the substantive hearing. Consequently, the respondent's request for ancillary orders was refused. The FWC ordered that Ms Star be reinstated to her former position with WorkPac.

The FWC’s final orders mandated that Ms Star be reinstated to her previous position as a legal secretary with WorkPac, effective immediately. The respondent was directed to take all necessary steps to ensure compliance with this order. Furthermore, the respondent was ordered to pay Ms Star's legal costs associated with the application for unfair dismissal remedy.

Orders