Scott Challinger v JBS Australia Pty Ltd - [2014] FWC 4874

[2014] FWC 4874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

COMMISSIONER HAMPTON

ADELAIDE, 30 SEPTEMBER 2014

Application for relief from unfair dismissal - long standing employee in meat works - dismissed on basis of alleged breach of safety instructions and abusive and inappropriate language and conduct - whether valid reason - whether safety instruction given to applicant - whether language and conduct inappropriate given circumstances - breach of safety instruction not demonstrated - language and tone of response not appropriate even in the context of the low bar set by the workplace - misconduct found in part - dismissal harsh in all of the circumstances - dismissal unfair - request to re-open to hear new evidence about post hearing conduct - on balance new evidence potentially probative to remedy and application to be re-opened to that extent.

1. Background and Case Outline

[1] At the time of his dismissal, Mr Scott Challinger had worked in the meat industry for almost 25 years, with more than ten of those years in the employment of JBS Australia Pty Ltd 1 (JBS) at the Bordertown abattoir. There was, during that period, some disciplinary action taken against Mr Challinger. At the time of his dismissal on 3 March 2014, Mr Challinger was a slaughterman and the senior delegate for the Australasian Meat Industry Employees Union (AMIEU) at the plant.

[2] Mr Challinger was dismissed 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 plant and had used inappropriate language towards senior staff, made personal attacks, and his conduct involved abusive and offensive behaviour. The events leading to these allegations took place on 12 February 2014 and involved Mr Mick Ryan (his supervisor) and more indirectly, Mr Wade Phillips, who at that time was the Production Manager.

[3] Mr Challinger’s dismissal followed an investigation of the allegations by JBS and the events surrounding a previous incident in 2012. JBS also rely upon what it says is a history of warnings and non compliance in the workplace.

[4] Mr Challinger has made application under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for what he claims is an unfair dismissal. He seeks reinstatement; albeit on the basis that a final warning would be issued to him. 2

[5] In this case, the ultimate question for the Commission is whether Mr Challinger’s dismissal was unfair. That assessment is to be made having regard to the relevant statutory considerations.

[6] Those considerations require the resolution of the following issues, amongst other matters, that are in dispute:

● Whether Mr Challinger was instructed to wear an armguard when using a knife in connection with the work in question prior to being required to do so on 12 February 2014;
● The precise language and context of the exchange on 12 February…

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 4874
Decision Date: 30 SEPTEMBER 2014

CaseChat Overview and Summary

Scott Challinger, a long-standing employee in a meat works, applied for relief from his unfair dismissal to the Fair Work Commission. He was dismissed by JBS Australia Pty Ltd on the grounds of an alleged breach of safety instructions and the use of abusive and inappropriate language and conduct. The dispute was brought before the Fair Work Commission, which was required to decide on the validity of the dismissal reasons, the clarity of the safety instructions provided to the applicant, and the appropriateness of the language and conduct given the circumstances.

The Commission found that while the breach of safety instructions was not adequately demonstrated, the language and tone of the applicant's response were not appropriate even considering the low bar set by the workplace. The Commission determined that there was partial misconduct, but also concluded that the dismissal was harsh in all the circumstances. Consequently, the dismissal was deemed unfair. Furthermore, the Commission considered a request to re-open the hearing to allow new evidence about the applicant's post-hearing conduct, finding that the new evidence was potentially probative to the remedy. The application was thus re-opened to that extent.

In summary, the Fair Work Commission ruled that the dismissal was unfair due to the harshness of the action in the circumstances, despite partial misconduct. The Commission allowed the re-opening of the hearing to consider new evidence regarding the applicant's post-hearing conduct.

Orders