DECISION

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

Sarah Engel
v
Central Queensland Services Pty Ltd
(U2016/6637)

COMMISSIONER HUNT

BRISBANE, 5 JANUARY 2017

Application for unfair dismissal — termination of employment — whether failure to properly report and disclose material information about a serious incident amounts to valid reason for dismissal — valid reason for dismissal despite respondent’s procedural fairness deficiencies — dismissal not unfair — application dismissed.

[1] Ms Sarah Engel has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Central Queensland Services Pty Ltd (CQS).

[2] CQS contracts with BM Alliance Coal Operations Pty Ltd (BMACO) to provide services including labour at the Caval Ridge Mine in the Bowen Basin in Central Queensland (the Mine).

[3] Ms Engel commenced employment with CQS on or about 14 July 2013 in the role of Trainer/Assessor. In April 2014, Ms Engel began working as an Operator. At the time of the dismissal she was working in ‘B Crew’ and working in the Production Prestrip Department at the Mine.

[4] Ms Engel’s employment was terminated on 15 April 2016. She had been employed for approximately 2 years and 9 months at the time of the dismissal.

Hearing

[5] The application was heard in Brisbane on 5 and 6 September 2016. Leave was granted pursuant to s.596 of the Act for Ms Engel to be represented by Mr Luke Tiley of Hall Payne Lawyers, and for CQS to be represented by Ms Emma Freeman, of Counsel.

[6] The following witnesses’ statements and reply statements were admitted into evidence, except in the case of Mr Richards where he gave evidence viva voce:

● Ms Sarah Engel, Applicant;
● Mr Ben Richards, Operator and employee of CQS;
● Mr Lucky Andrews, former employee of CQS (not required for cross-examination);
● Ms Brooklyn Coyle, Head of Improvement (Coal);
● Mr Stuart Brown, Superintendent – Production Prestrip; and
● Mr Braydon McEvoy, Superintendent – Mine Services (not required for cross-examination)

[7] Written closing submissions were filed by both parties and oral closing submissions were heard in Brisbane on 25 October 2016.

Background

[8] Ms Engel has worked in the mining industry for approximately 10 years as an Operator. For the past 7 years she has also worked as a Trainer/Assessor/Operator. Ms Engel is qualified to operate, train and assess other employees in the following pieces of machinery:

(a) Shovel;

(b) Wheel Dozer;

(d) Water Cart;

(e) Haul Trucks.

[9] It is not disputed that Ms Engel had been up until the dismissal the most senior and experienced female Operator/Trainer/Assessor at the Mine. Ms Engel was somewhat of a ‘celebrated’ employee; she was nominated for an award in early 2014, and invited to meet the Prime Minister, Mr Tony Abbott during the Mine’s official opening ceremony in October 2014.

June 2014 warning issued

[10] In June 2014, Ms Engel was…

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: [2017] FWC 87
Decision Date: 5 JANUARY 2017

CaseChat Overview and Summary

Sarah Engel commenced an application for unfair dismissal against Central Queensland Services Pty Ltd, asserting that her termination was unjust due to procedural deficiencies and the absence of a valid reason. The dispute was heard in the Fair Work Commission. The crux of the matter was whether the employer's failure to properly report and disclose information about a serious incident constituted a valid reason for dismissal, and if procedural fairness was adequately observed in the dismissal process.

The legal issues before the court involved whether the employer had a valid reason for terminating Ms Engel's employment and if the dismissal process complied with procedural fairness requirements. The court examined whether the employer's failure to report the incident properly and disclose material information to Ms Engel could constitute a valid reason for dismissal, irrespective of the procedural fairness shortcomings. The court also considered if the dismissal was unfair due to the employer's failure to adhere to procedural fairness, despite the existence of a valid reason.

The court found that the employer had a valid reason for dismissing Ms Engel, as her failure to properly report and disclose information about a serious incident amounted to misconduct. Despite the employer's procedural fairness deficiencies, the court concluded that the dismissal was not unfair. The court held that the valid reason for dismissal outweighed the procedural deficiencies and dismissed the application for unfair dismissal. The court found that the employer had acted within its rights to terminate Ms Engel's employment and that the application for unfair dismissal was accordingly dismissed.

Orders