Robert Mayer v Transfield Services (Australia) Pty Limited - [2013] FWC 5340

[2013] FWC 5340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Mayer
v
Transfield Services (Australia) Pty Limited
(U2013/1117)

COMMISSIONER MACDONALD

SYDNEY, 25 SEPTEMBER 2013

Application for relief from unfair dismissal - Applicant’s breach of Mandatory Safety Rule - investigation - summary dismissal - Hearing - preliminary issue of legal representation - valid reason for dismissal - dismissal harsh - reinstatement ordered - no order for lost wages.

[1] This decision arises from an application by Mr Robert Mayer (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Transfield Services (Australia) Pty Limited (the Employer/the Respondent).

[2] The unfair dismissal application was filed on 9 April 2013.

[3] The Employer’s response to the unfair dismissal application was filed on 29 April 2013.

[4] The unfair dismissal application was listed for conciliation before a Fair Work Commission (FWC) Conciliator on 9 May 2013 but did not resolve.

[5] The unfair dismissal application was set down for a one day Hearing in Wollongong before the Fair Work Commission (FWC) on 7 August 2013.

[6] The Applicant was represented by Ms Lucy Saunders of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). Ms Saunders called the following witness:

Robert Mayer - the Applicant

[7] The Respondent was represented by Ms Katherine Peterson, solicitor, who sought permission to appear. Ms Peterson also gave an appearance for Mr D Dal Bon, Executive Manager Industrial Relations, of the Respondent.

[8] The AMWU advised from the bar table that it had no objection to the Respondent being legally represented. I then asked if the Act provided that if one party consents to the other party being legally represented, then can that other party be legally represented ? Ms Peterson answered that the Act did not so provide.

[9] Ms Peterson addressed me on the requirements for legal representation as set out in section 596 of the Act. Ms Peterson advised that Mr Dal Bon (Executive Manager, Industrial Relations of the Respondent), was not in a position to run the case for the Respondent. Thus, Mr Dal Bon was not based at the site (a BlueScope site) where the incident occurred. Further, the case before the FWC would run more efficiently through legal representation given the extended factual background as to procedures on site and safety matters and the application of the grounds for dismissal as against the criteria set out in section 387 of the Act.

[10] I sought a response to the foregoing from the AMWU. Ms Saunders, “Legal Officer” of the AMWU, advised: “... I have no particular objection to them being represented but, as you’ve (myself, Macdonald C) said, that’s not the relevant test and, by saying that, I’m not saying I support their specific submissions. I have no comment to make on legal representation.”(PN 27).

[11] I referred to section 596(2) and that…

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: [2013] FWC 5340
Decision Date: 25 SEPTEMBER 2013

CaseChat Overview and Summary

In the matter of Robert Mayer versus Transfield Services (Australia) Pty Limited, the Fair Work Commission was tasked with hearing an application for relief from unfair dismissal. The applicant, Robert Mayer, was summarily dismissed by the respondent, Transfield Services, following a breach of a Mandatory Safety Rule. The Commission was required to determine if the dismissal was fair and, if not, what remedy should be awarded.

The primary legal issue was whether the respondent had a valid reason to dismiss the applicant, and if so, whether the dismissal was harsh, unjust, or unreasonable. The Commission needed to assess the circumstances surrounding the breach of the safety rule, the investigation process, and the summary nature of the dismissal. The applicant argued that the dismissal was unfair and that he was entitled to reinstatement and compensation for lost wages. The respondent contended that the breach was serious enough to warrant summary dismissal and that the dismissal was fair.

The Commission found that while the breach of the safety rule was serious, the respondent had not adequately investigated the circumstances surrounding the breach before dismissing the applicant. The Commission also found that the summary dismissal was harsh, unjust, or unreasonable, and therefore unfair. The applicant was ordered to be reinstated to his previous position, but no compensation was awarded for lost wages. The Commission held that the serious breach of the safety rule provided a valid reason for dismissal, but the lack of investigation and the summary nature of the dismissal rendered it unfair.

Orders