Star v WorkPac Pty Ltd T/A WorkPac Group - [2018] FWC 4991

[2018] FWC 4991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Kim Star

WorkPac Pty Ltd T/A WorkPac Group

(U2017/12786)

DEPUTY PRESIDENT ASBURY

BRISBANE, 28 AUGUST 2018

Application for an unfair dismissal remedy – labour hire company directed by client to remove employee from site – finding that applicant was dismissed when labour hire complied with direction to remove her from site – whether valid reason for dismissal related to capacity or conduct – finding that applicant established inference a conduct issue relating to direction to remove her from site existed – labour hire company failure to make enquiry of client to establish reasons for removal from site – finding on balance of probabilities that reason for direction to remove applicant from site related to conduct – no valid reason for removal from site leading to dismissal – failure of labour hire company to consider alternative assignments before terminating applicant’s employment – dismissal unfair – provisional view reinstatement appropriate subject to reservations – opportunity for parties to consider positions in relation to reinstatement.

Ms Kim Star applies under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by WorkPac Pty Ltd T/A WorkPac Group (WorkPac). Ms Star was employed by WorkPac as a Machinery Operator at the Goonyella Riverside Mine on a casual basis from October 2013. WorkPac is a labour hire business that provides labour to its clients in various industries, including the mining industry. The Goonyella Riverside Mine is operated by BHP Billiton Mitsubishi Alliance (BMA) and is located approximately 30 kilometres south of the town of Moranbah.

Ms Star contends that she was unfairly dismissed on 13 November 2017, when she received a telephone call from WorkPac informing her that BMA had “demobilised” her from the site. Ms Star seeks reinstatement. WorkPac submits that there are three possible findings that the Commission may make in relation to Ms Star’s application:

The employment contract and underpinning employment relationship was terminated at the initiative Workpac on 13 November 2017 when Ms Star was notified of the finalisation of the Goonyella assignment;
The employment contract and underpinning employment relationship was terminated at the initiative Workpac on 15 November 2017 when it became clear that it would not be possible for Workpac to secure an alternative assignment for Ms Star; or
The employment contract and underpinning employment relationship was not terminated at the initiative of Workpac but ended when Ms Star informed the Company that she was not interested in alternative assignments after her Goonyella assignment was finalised.

Workpac accepts that if the first finding was made by the Commission the application would be determined in favour of Ms Star. If the second or third finding was made then the application would be determined in favour of Workpac.

Ms Star’s application was made within the time required in s.394(2) of the Act. It is not in dispute that Ms…

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: [2018] FWC 4991
Decision Date: 28 AUGUST 2018

CaseChat Overview and Summary

Kim Star applied for an unfair dismissal remedy in respect of her dismissal by WorkPac Pty Ltd T/A WorkPac Group. Ms Star was employed by WorkPac as a Machinery Operator at the Goonyella Riverside Mine on a casual basis. Ms Star contends that she was unfairly dismissed on 13 November 2017, when she received a telephone call from WorkPac informing her that BHP Billiton Mitsubishi Alliance had “demobilised” her from the site. Ms Star seeks reinstatement. WorkPac submits that there are three possible findings that the Commission may make in relation to Ms Star’s application: The employment contract and underpinning employment relationship was terminated at the initiative Workpac on 13 November 2017 when Ms Star was notified of the finalisation of the Goonyella assignment; The employment contract and underpinning employment relationship was terminated at the initiative Workpac on 15 November 2017 when it became clear that it would not be possible for Workpac to secure an alternative assignment for Ms Star; or The employment contract and underpinning employment relationship was not terminated at the initiative of Workpac but ended when Ms Star informed the Company that she was not interested in alternative assignments after her Goonyella assignment was finalised. The Commissioner found that Ms Star was dismissed at the initiative of WorkPac when her Goonyella Riverside assignment was brought to an end on 13 November 2017. The Commissioner found that Ms Star’s dismissal was unfair on the basis that there was no valid reason for dismissal related to her conduct. The Commissioner found that it is more probable than not that Ms Star’s dismissal related to a conduct issue. Ms Star was dismissed before any attempts were made by WorkPac to redeploy her and I do not accept that any inability to redeploy Ms Star was the reason for her dismissal. After being informed that BMA required Ms Star to be removed from the Goonyella Riverside Mine site, WorkPac managers made no attempt to ascertain the reasons for this directive. In failing to do this, WorkPac managers did not act consistently with the Company’s usual practices. Further, WorkPac did not seek to ascertain whether clause 12.1 of the contract with BMA applied. It is not to the point that BMA had previously refused to provide a reason for issuing directives to remove staff from site. Failure on the part of WorkPac managers to seek clarification of the reason for the directive has resulted in a situation where WorkPac cannot rebut the inference raised by Ms Star’s evidence that the dismissal was related to her conduct. Consequently on the balance of probabilities the reason for Ms Star’s dismissal related to her conduct, and I do not accept that this was a valid reason. The Commissioner found that Ms Star’s dismissal was unfair on the basis that there was no discussion with Ms Star about the decision to remove her from the site and the consequential termination of her employment prior to the termination being effected. The BMA directive was accepted by WorkPac managers as a fait accompli and there was no attempt made to discuss the directive with a relevant manager of BMA or to confirm the reason for the directive or whether the contractual provisions between BMA and WorkPac with respect to unsatisfactory performance by WorkPac personnel applied. The Commissioner found that Ms Star’s dismissal was unfair on the basis that there was no valid reason for dismissal related to her conduct. The Commissioner found that Ms Star’s dismissal was unfair on the basis that there was no discussion with Ms Star about the decision to remove her from the site and the consequential termination of her employment prior to the termination being effected. The Commissioner found that Ms Star’s dismissal was harsh because of its consequences for her personal and economic situation and because there was no conduct sufficient to justify her dismissal. The dismissal was also unreasonable because it was decided on inferences which were not reasonably open to WorkPac on the basis of the information it had or which it could reasonably have obtained from BMA. The Commissioner found that Ms Star’s dismissal was unfair and ordered reinstatement, the maintenance of continuity of employment and payment of lost remuneration. The Commissioner provided the parties with an opportunity to have discussions, with the assistance of a member of the Commission if this is thought to be appropriate, to attempt to resolve the matter.

Orders