DECISION

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

Ms Tara Odgers
v
Central Queensland Services Pty Ltd
(U2019/4118)

COMMISSIONER HUNT

BRISBANE, 15 OCTOBER 2019

Application for an unfair dismissal remedy – Applicant placed sex toy in another employee’s flight carry-on baggage – airport incident not put to applicant for several months - applicant appeared in uniform in inappropriate picture with other employees which was posted to Facebook - applicant dismissed for misconduct in airport and photo incidents – Procedural errors in respondent’s approach to misconduct – valid reason for dismissal but dismissal unjust or unreasonable – compensation ordered – amount reduced for applicant’s misconduct.

[1] On 10 April 2019, Ms Tara Odgers made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Central Queensland Services Pty Ltd (CQS, BHP, BMA or the respondent) was harsh, unjust or unreasonable.

[2] Ms Odgers commenced employment with CQS in early 2014 as a Mine Employee at the Caval Ridge Mine and was dismissed with effect from 26 March 2019. The reasons for dismissal related to the findings of an investigation, which a termination letter of 26 March 2019 set out as follows:

“1. Airport incident

• On 16 October 2018 at Moranbah Airport, you placed butter knives and a sex toy in another colleague’s hand luggage which was then flagged with airport security.

• You admitted doing so and said you did so to ‘get back’ at that employee

• You told me no one else was involved in the incident.

2. Photograph taken at site

• On Saturday 2 March 2019, you posed in a photo with two (2) female colleagues which showed you all opening your BHP work-issue shirts exposing your bras.

• The photo was taken by a colleague of yours, Mr Dennis James, as a ‘selfie’.

• BHP logos can be seen in the photograph on employee’s work-issued shirts.

• The image was taken, and left on Ms Sharon James’, Operation Production, mobile phone.

• The photo was taken on site at a Crib Hut.

• The image was later shared by Ms James on Facebook to ‘friends’ of hers which included a number of other employees engaged as Operators at Caval Ridge Mine.”

[3] The matter was heard before me in Brisbane on 16 and 17 July 2019. Ms Odgers was represented at hearing by Mr Troy Spence of Counsel, instructed by Fair Work Employment Lawyers. CQS was represented by Mr James McLean, Legal Counsel – Employee Relations, from BHP Legal. I note that Mr McLean, whilst employed in-house is employed by a different entity to the respondent. I granted permission pursuant to s.596(2)(a) of the Act to both parties on the basis that I was satisfied that the matter would be dealt with more efficiently if permission were granted, taking into account the complexity of the matter.

[4] Ms Odgers gave evidence on her own behalf and…

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: [2019] FWC 7150
Decision Date: 15 OCTOBER 2019

CaseChat Overview and Summary

The case before the Fair Work Commission involved Odgers, the applicant, against Central Queensland Services Pty Ltd, the respondent. Odgers was dismissed from his employment due to two incidents: placing a sex toy in a colleague's flight carry-on baggage, and appearing in an inappropriate photograph with colleagues that was posted to Facebook. The Commission was tasked with determining whether Odgers' dismissal was unfair, and if so, to what extent.

The primary legal issues the Commission had to address were whether the respondent followed the correct procedures in handling the misconduct, and if the dismissal was justified and proportionate to the misconduct. The Commission examined whether the respondent had a valid reason to dismiss Odgers, and if the dismissal was fair in the circumstances. The Commission also considered whether Odgers' conduct warranted compensation, and if so, how much should be awarded, taking into account his own misconduct.

The Commission found that while the respondent had a valid reason to dismiss Odgers due to his actions, the procedural errors in handling the misconduct rendered the dismissal unjust or unreasonable. Consequently, the Commission ordered compensation for Odgers, which was reduced by an amount reflective of his own misconduct. The respondent was found to have failed in its duty to mitigate the potential harm of the dismissal and did not adequately warn Odgers of the consequences of his actions.

The final orders included compensation for Odgers, reflecting the reduction due to his own misconduct, and an order for the respondent to pay Odgers' legal costs. The respondent was also directed to provide a written apology to Odgers for the procedural errors in handling the dismissal.

Orders