DECISION

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

Peter Tainsh & Markus Willner
v
Co-Operative Bulk Handling Ltd
(U2021/1599 & U2021/1609)

DEPUTY PRESIDENT BEAUMONT

PERTH, 5 NOVEMBER 2021

Application for an unfair dismissal remedy – excluding an employee – application dismissed

[1] Mr Tainsh commenced employment with Co-operative Bulk Handling Ltd (CBH) in June 2008. He was an electrician on CBH’s maintenance team, working at the Albany Terminal, in the state of Western Australia. Mr Willner, his colleague and also an electrician, did not have the same period of continuous service with the business as compared to Mr Tainsh, albeit he had worked for the company on multiple occasions. Mr Willner commenced employment with CBH in July 2017, again on the maintenance team. However, before being employed on a permanent basis, Mr Willner worked as a ‘contract’ electrician through KI Recruitments for approximately two years (2015-2017), and before that, he worked with CBH in 2004, and then again between 2008 and 2010.

[2] On 5 February 2021, CBH terminated the employment of Mr Tainsh and Mr Willner (the Applicants) on the basis of serious misconduct. There was no dispute that the Applicants were paid in lieu of five weeks’ notice. That letter of termination set out that the Applicants had engaged in bullying conduct, which was in contravention of CBH’s The Way We Work – Business Code of Conduct (Code of Conduct), its Workplace Harassment, Discrimination, Bullying and Equal Opportunity Employment Procedure (Harassment, Discrimination and Bullying Procedure) and their employment contracts. The bullying conduct was said to be:

[M]aking Dale Sivwright and Garnet O’Connell feel unwelcome in the smoko room including ignoring Garnet O’Connell when he said ‘Good Morning’.

[3] To explain, Mr Sivwright was the initial complainant about the alleged bullying. He was a labour hire worker provided by a company called Ready Force. A boilermaker by trade, he had worked with the Applicants. After being informed that he was to be dismissed,
Mr Sivwright informed CBH management of the alleged ‘bullying’ by the Applicants, directed not only towards him, but also to two of CBH’s apprentices. Those apprentices were Mr O’Connell, a mature aged electrical apprentice, and Mr Lyndon Pasutti, the apprentice fitter.

[4] While Mr Sivwright undoubtedly levelled the complaint of bullying against the Applicants and some others, it was ultimately Mr O’Connell who was primarily subjected to the purported bullying, and at hearing it was Mr O’Connell who provided evidence on behalf of CBH.

[5] When it came to the termination of the Applicants’ employment, the termination letters detailed several reasons why CBH had dismissed them. The author of that letter and the decision maker regarding the Applicants’ dismissals was Mr Piercey, the General Manager – Albany Zone CBH. In respect of Mr Tainsh, Mr Piercey wrote in the termination letter to the effect:

a) ‘it was disappointing that even at this late stage, you continue to attack the…

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 Tainsh & Markus Willner v Co-Operative Bulk Handling L... 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: [2021] FWC 4222
Decision Date: 5 NOVEMBER 2021

CaseChat Overview and Summary

The Applicants, Mr Tainsh and Mr Willner, sought unfair dismissal remedies under s 394 of the Fair Work Act 2009 (Cth). They were terminated by Co-Operative Bulk Handling Ltd (CBH) on the basis of serious misconduct, specifically, making two employees feel unwelcome in the smoko room, including ignoring Mr O'Connell when he said 'Good Morning'. The Applicants argued that there was no valid reason for their dismissal and that their dismissal was harsh, unjust, and unreasonable. The Applicants also contended that they were not provided with a genuine opportunity to respond to the allegations and that they were afforded differential treatment. CBH argued that the Applicants' dismissals were justified, fair, and reasonable, and that the Applicants' conduct constituted serious misconduct. CBH submitted that the Applicants' dismissals were based on a valid reason, and that the disciplinary process was fair and in line with CBH's policies and procedures. The Fair Work Commission dismissed the Applicants' claims, finding that CBH had a valid reason for terminating the Applicants' employment, and that the dismissals were not harsh, unjust, or unreasonable. The Commission found that the Applicants' conduct was serious and amounted to bullying, which had a negative impact on the wider Albany maintenance team and the workplace environment. The Commission also found that the disciplinary process was fair and that the Applicants were given an opportunity to respond to the allegations. The Commission rejected the Applicants' arguments regarding procedural unfairness and differential treatment, and held that the Applicants' dismissals were not unfair.

Orders