[2014] FWC 7963 [Note: An appeal pursuant to s.604 (C2014/8360) was lodged against this decision - refer to Full Bench decision dated 30 January 2015 [[2015] FWCFB 520] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Scott Challinger
v
JBS Australia Pty Ltd
(U2014/5789)

COMMISSIONER HAMPTON

ADELAIDE, 15 DECEMBER 2014

Application for relief from unfair dismissal – dismissal found to be harsh – additional evidence – case re-opened – conduct of applicant – whether reinstatement appropriate – balance of considerations – basis of employer’s concerns based in part upon incorrect understanding of the conduct – clear remedial benefit of reinstatement given circumstances of the applicant – reinstatement appropriate – whether discretion to grant lost wages should be exercised – significant deduction made in the circumstances – order issued.

1. Background

[1] This decision concludes consideration of an application by Mr Scott Challinger pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. Mr Challinger was dismissed by JBS Australia Pty Ltd (JBS) on a number of grounds including that he had allegedly failed to comply with a safety instruction to wear protective armguards when using a knife in the relevant part of the Bordertown meat works plant and had used inappropriate language towards senior staff, made personal attacks, and his conduct involved abusive and offensive behaviour.

[2] The substance of the application was determined by the Fair Work Commission (the Commission) in a decision issued on 30 September 2014 1 (the September decision). This decision should be read in conjunction with the September decision.

[3] In the September decision, I found:

“[52] Mr Challinger was supplied with an armguard at some stage, however there is no evidence as to the circumstances in which that took place. I note that another employee doing the same function was also not wearing an armguard on 12 February 2014. In any event, I am not satisfied that Mr Challinger was instructed that he had to wear an armguard when undertaking the particular work being performed by him on 12 February 2014, before being told to do so on that day. Mr Challinger did then put on the armguard; albeit under protest.

[53] Mr Challinger would however have already been aware that the requirement to wear the armguard on all work involving a knife on the slaughter floor was one that management had intended to apply when circumstances allowed.”

....

[58] Mr Challinger was not happy with the instruction to wear the armguard and although he put it on, he stated to Mr Ryan words to the effect of, ‘Oh f***, we’ve got to wear these here now, do we” and Mr Ryan indicted to the effect that “they’re the orders”. Mr Challinger then said “I’m sick of these fu**ing rules swapping and changing, there are too many f**heads over in that office” Mr Challinger then also spoke to Mr Phillips and stated…

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: [2014] FWC 7963
Decision Date: 15 DECEMBER 2014

CaseChat Overview and Summary

Scott Challinger, the applicant, sought relief from an unfair dismissal against JBS Australia Pty Ltd, the respondent. The dispute centred on the fairness of the dismissal, with the applicant arguing it was unjust, and the employer defending the decision based on the applicant's conduct. The case was heard in the Fair Work Commission.

The legal issues before the court involved determining whether the dismissal was harsh, unjust, or unreasonable, and if so, whether relief should be granted in the form of reinstatement or compensation. Another issue was whether the employer's concerns were founded on an incorrect understanding of the applicant's conduct and whether reinstatement was appropriate given the circumstances. The court also had to consider whether the discretion to grant lost wages should be exercised.

In examining the matter, the court found the dismissal to be harsh, unjust, or unreasonable, primarily due to the employer's misunderstanding of the applicant's conduct. The employer's concerns were based partly on an incorrect interpretation of events. The court found that reinstatement would offer clear remedial benefits to the applicant given the circumstances. It concluded that the balance of considerations favoured reinstatement, and the employer's concerns were not sufficiently justified to prevent it. The court also decided that while a significant deduction should be made in the lost wages claim, it was still appropriate to grant some compensation to the applicant.

The final orders included the reinstatement of the applicant to their former position with JBS Australia Pty Ltd and the payment of lost wages, subject to a reduction based on the court's findings.

Orders