DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Brain
v
Nyrstar Hobart Pty Ltd
(U2017/5484)

DEPUTY PRESIDENT BARCLAY

HOBART, 8 FEBRUARY 2018

Application for an unfair dismissal remedy – alleged safety breach – employed for 37 years with Respondent and predecessors – no relevant prior conduct matters – valid reason but dismissal harsh

[1] On 24 May 2017, Mr Peter Brian (the Applicant) made an application for a remedy for his alleged unfair dismissal from his employment with Nyrstar Hobart Pty Ltd (the Respondent) pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] Both parties were given permission to be represented by legal practitioners.

[3] The Applicant was employed by the Respondent from 19 March 1980 until his dismissal which took effect from 8 May 2017, a period of a little over 37 years.

[4] At the time of the dismissal the Applicant was employed as a Plant Operator. During the course of his employment the Applicant had received two formal written notifications relating to his employment. The most recent was approximately 14 years prior to the dismissal. Both incidents occurred within a few weeks of each other.

[5] The dismissal related to a safety breach. In summary, the Respondent submits that there was a valid reason for the dismissal and the breach was so serious that it outweighed considerations of length of employment and the absence of recent workplace notifications, and any other relevant considerations such that the dismissal was not harsh, unjust or unreasonable.

[6] For his part the Applicant submits that there was no valid reason for the dismissal. However, even if there was the dismissal was nevertheless harsh, unjust and unreasonable having regard in particular to the very long period of service the Applicant had with the Respondent, the absence of recent prior notifications and the effect on him personally having regard to his potential for future employment and that overall the sanction of dismissal was disproportionate.

Summary of Outcome

[7] For the reasons which follow I have found that there was a valid reason for termination. The Applicant was guilty of a serious safety breach. He proceeded to energise equipment which was still being worked on by maintenance. He removed tags from the equipment when he should not have done so, and knew he should not have done so. He potentially exposed a maintenance worker to the risk of injury. However, I have also found that the termination was harsh. The Respondent failed to seek submissions from the Applicant in respect to sanction. Accordingly, he was denied procedural fairness in this regard. The Applicant had been employed by the Respondent and its predecessors for 37 years. He had no relevant previous warnings and only had two counselling matters some 14 years prior to dismissal. He had worked his whole life in employment at the Respondents premises. It is unlikely he will be able to obtain alternative employment due to his age and skills. A…

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 Peter Brain v Nyrstar Hobart Pty Ltd 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: [2018] FWC 846
Decision Date: 8 FEBRUARY 2018

CaseChat Overview and Summary

Peter Brain commenced proceedings against Nyrstar Hobart Pty Ltd in the Federal Circuit Court seeking relief for an unfair dismissal. The dispute centred around an alleged safety breach which led to his dismissal after 37 years of employment with the company and its predecessors. The Federal Circuit Court was tasked with determining whether the dismissal was unfair within the meaning of the Fair Work Act 2009. The central legal issues involved whether the employer had a valid reason for the dismissal and, if so, whether the dismissal was harsh, unjust, or unreasonable.

The court examined the evidence presented by both parties, including the employer's assertion that the dismissal was due to a serious safety breach and the employee's argument that the dismissal was unfair given his long service and lack of prior conduct issues. The court considered the principles of procedural fairness and the proportionality of the disciplinary action taken. It also weighed the employer's need to maintain workplace safety against the employee's long-term service and the absence of previous disciplinary issues.

In its judgment, the court found that the employer had a valid reason for the dismissal, as the safety breach was serious and warranted disciplinary action. However, the court determined that the dismissal was harsh, unjust, or unreasonable. The court noted the employee's long service, lack of prior disciplinary issues, and the absence of a prior warning about similar conduct. Consequently, the court ordered that the dismissal be set aside and that the employee be reinstated to his former position. Additionally, the court ordered the employer to pay the employee's loss of wages and entitlements from the date of dismissal until the date of reinstatement.

Orders