DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Edgar
v
SMS Operations Pty Ltd T/A Swick Mining Services
(U2017/4226)

DEPUTY PRESIDENT BULL

PERTH, 27 JULY 2017

Application for an unfair dismissal remedy, safety breach. Safety procedure not followed, valid reason, procedural fairness considered, application dismissed.

[1] In this application Mr Nicholas Edgar, who was employed as an underground diamond driller with SMS Operation Pty Ltd which trades as Swick Mining Services (the respondent/Swick), claims that he was unfairly dismissed on 7 April 2017, having commenced employment with Swick on 15 December 2014.

[2] Mr Edgar’s termination of employment followed an incident which occurred on 2 April 2017, 1 while working underground at the Golden Grove mine site which is located approximately 450 km north of Perth and 250 km east of Geraldton.

[3] Swick is a mineral drilling contractor that provides underground and surface drilling services to various clients, in this case MMG which operates the Golden Grove mine which has both underground and open cut operations. Swick specialises in underground diamond drilling.

[4] Mr Edgar was driving up an underground decline in a light vehicle (LV) at the end of his shift when his vehicle drifted to the right, causing the right wheel to catch the side of a drain. The LV then made contact with the wall resulting in significant damage to the front right hand side of the vehicle. Mr Edgar was driving with a passenger the time. He proceeded to drive the vehicle out of the drain, away from the accident scene, and up to the surface into the workshop area at which time he reported the incident. 2

[5] Leaving the scene of the accident was said by Swick to be in breach of its incident management procedure 3 of which Mr Edgar was aware. Swick considered the breach to be of sufficient seriousness to warrant Mr Edgar’s dismissal with the appropriate notice period being paid in lieu.

[6] Mr Edgar received a written termination of employment letter dated 7 April 2017. In addition to reliance on the applicant’s breach of the incident management process, Swick referred to a series of warnings that Mr Edgar had recently received and that its client, MMG, had advised that Mr Edgar could not return to the Golden Grove mine site based on his failure to report the vehicle accident within an acceptable timeframe. 4

[7] When the matter was heard before the Fair Work Commission (the Commission), Mr Edgar appeared on his own behalf and Ms Ashlee Underwood, Senior Human Resource Officer, represented Swick.

Notice of discontinuance

[8] Mr Edgar’s application was filed in the Commission on 19 April 2017 by his then representative, A Whole New Approach Pty Ltd (A Whole New Approach). On 29th of May 2017 a Form F54 - Notice of Representative Ceasing to Act was filed with the Commission by A Whole New Approach advising that it had ceased to act for Mr Edgar in his unfair…

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.

Keep reading for free

Create a free CaseChat account to read Nicholas Edgar v SMS Operations Pty Ltd T/A Swick Mining Ser... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 3826
Decision Date: 27 JULY 2017

CaseChat Overview and Summary

In the matter of Nicholas Edgar versus SMS Operations Pty Ltd trading as Swick Mining Services, the Federal Court of Australia was presented with an application for an unfair dismissal remedy. Nicholas Edgar, an employee, alleged that his dismissal was unfair, claiming that the reason provided by his employer was not valid and that he was not given procedural fairness. The employer argued that the dismissal was justified due to a safety breach where Edgar did not follow a critical safety procedure, which led to a hazardous situation.

The primary legal issues the court needed to address were whether the employer had a valid reason for dismissing Edgar and whether the employer afforded Edgar procedural fairness during the dismissal process. The court was required to determine if the safety breach constituted a valid reason for dismissal and whether Edgar's procedural rights were adequately observed. The court examined the evidence provided by both parties regarding the safety breach incident and the dismissal process, including any communication and warnings given to Edgar.

The court found that the employer had provided clear evidence that the dismissal was due to a serious safety breach where Edgar failed to follow a crucial safety procedure. This breach led to a dangerous situation, which the employer deemed justified grounds for dismissal. The court also concluded that the employer had followed procedural fairness by providing adequate warnings and opportunities for Edgar to address the safety concerns. Consequently, the court dismissed Edgar's application for an unfair dismissal remedy, finding that the employer had valid reasons for the dismissal and had provided procedural fairness. The court did not find any merit in the claim of unfair dismissal.

Orders