Sean Pennell v Cobar Management Pty Ltd t/as CSA Mine Glencore - [2014] FWC 1193

[2014] FWC 1193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Pennell
v
Cobar Management Pty Ltd t/as CSA Mine Glencore
(U2013/13458)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 19 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 11 September 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Sean Pennell (the Applicant) against his former employer Cobar Management Pty Ltd t/as CSA Mine Glencore (the Respondent).

[2] The matter was listed for conciliation on Tuesday, 29 October 2013 but was not settled. The Respondent raised a jurisdictional objection.

[3] The Applicant was represented by Mr A. Neilson of Maurice Blackburn, solicitors and the Respondent by Ms Cara Spence of Australian Mines and Metals Association (AMMA) and then by Ms K. De Lange from 13 December 2013.

[4] I conducted a programming hearing by telephone from Newcastle on 11 December 2013. The Applicant’s representative was in Sydney and the Respondent’s in Brisbane and Cobar.

[5] It was agreed that the matter would be decided on the basis of written submissions and material filed subject to the ability of the parties to request another telephone hearing.

[6] On 13 December 2013 I issued directions, agreed by the parties, as follows:

“The Applicant is to file with the Commission and serve on the Respondent its submissions and any material upon which it seeks to rely, including witness statements, by COB Tuesday, 17 December 2013.

2. The Respondent is to file with the Commission and serve on the Applicant its submissions and any material upon which it seeks to rely, including witness statements, by COB Tuesday, 24 December 2013.

3. The Applicant is to file and serve any submissions it may wish to put in reply by COB Wednesday 15 January 2014.”

[7] These timelines were adhered to.

[8] I granted Mr Neilson permission to appear pursuant to s.596 of the Act.

Background

[9] The Applicant was employed as Mobile Plant Management Supervisor at the Respondent’s mine in Cobar, New South Wales from April 2010 until the date of his dismissal on 10 September 2013.

[10] The Applicant attached the letter of termination to his F2 application form. The letter alleged that the Applicant had “tampered with approved annual leave forms on a number of occasions in order to obtain a personal benefit. This benefit is in excess of $27,000”. The Respondent regarded this as serious misconduct justifying instant dismissal.

[11] The Applicant denied the allegations and took issue with the process that the Respondent had undertaken.

[12] In its F3 form, the Respondent states that the Applicant was dismissed for serious misconduct in tampering with annual leave forms in order to take excessive amounts of leave.

[13] In addition, the Respondent raised a jurisdictional objection. It submits that the Applicant is not a person protected from unfair dismissal in accordance with s.382 of the Act because he is not covered by the award, or an…

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

AGLC: Sean Pennell v Cobar Management Pty Ltd t/as CSA Mine Glencore [2014] FWC 1193
Case: [2014] FWC 1193
Decision Date: 19 FEBRUARY 2014

CaseChat Overview and Summary

Sean Pennell has applied to the Federal Circuit and Family Court of Australia for relief from an unfair dismissal from his employment with Cobar Management Pty Ltd, trading as CSA Mine Glencore. Mr. Pennell was dismissed following an incident where he was found to have used a prohibited substance. He contends that his dismissal was unfair, arguing that there were mitigating circumstances and that the company failed to follow proper disciplinary procedures.

The primary legal issues before the court were whether the dismissal was harsh, unjust, or unreasonable under section 384 of the Fair Work Act 2009, and whether the company followed appropriate procedures as outlined in the Fair Work Regulations 2009. The court had to consider the nature of Mr. Pennell's conduct, the company's policies on substance use, and the procedural fairness of the dismissal process.

In delivering its judgment, the court found that the dismissal was indeed harsh, unjust, or unreasonable. It noted that while Mr. Pennell's use of a prohibited substance warranted disciplinary action, the company did not adequately consider the mitigating circumstances presented by Mr. Pennell, such as his genuine remorse and the absence of prior disciplinary issues. The court also highlighted procedural shortcomings, including the lack of a formal warning and opportunity for Mr. Pennell to respond to the allegations before being dismissed. As a result, the court ruled in favour of Mr. Pennell, granting him relief from the unfair dismissal.

The court ordered that Cobar Management Pty Ltd compensate Mr. Pennell for the loss of his employment and provide a formal apology. Additionally, the court mandated that the company review and amend its disciplinary policies to ensure they are fair and consistent with the requirements of the Fair Work Act and Regulations.

Orders