Stephen Lawrence v Fulton Hogan Pty Limited - [2010] FWA 7924

[2010] FWA 7924

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Lawrence
v
Fulton Hogan Pty Limited
(U2010/9483)

COMMISSIONER BISSETT

MELBOURNE, 4 NOVEMBER 2010

Application for unfair dismissal remedy.

[1] This is an application by Mr Stephen Lawrence for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Lawrence was employed by Fulton Hogan as a truck driver. He commenced employment on 4 March 2009. His employment was terminated on 1 June 2010.

[3] The matter could not be settled in conciliation.

[4] Mr Lawrence gave evidence on his own behalf. Ms Kelly Lawrence and Ms Amanda Rigby were witnesses on his behalf.

[5] Evidence for the Respondent was given by Mr Joe Schoessow (Transport Manager); Mr Russell Reed (Workplace Health and Safety Officer for Fulton Hogan) and Mr Brendan Shiels (Production and Maintenance Manager, Burnside Road Asphalt Plant).

Background and evidence

[6] Fulton Hogan, amongst other things, provides asphalt and quarry services to the Origin Alliance project in Queensland. As part of the operation of the site Origin Alliance requires all workers (direct employees, contractors, etc) to undertake an induction process. It appears that this results in the granting of an induction card. Without such a card, a worker (directly employed or otherwise) cannot enter the site.

[7] On 28 May 2010 Origin Alliance revoked Mr Lawrence’s induction card. Because his card was revoked Fulton Hogan terminated his employment. Fulton Hogan says the termination of his employment relates to his capacity (incapacity) to fulfil his contract of employment in that he can no longer access the Origin Alliance site. 1

[8] Mr Lawrence says that on 24 May 2010 he felt ‘a twinge of pain in [his] lower back’ 2 while winding a tarp back on his truck. At the time he was on the Origin Alliance site. He did not immediately report the twinge.

[9] When he woke the next morning (25 May), his back was still sore so he rang Mr Schoessow at about 6.00am to advise that he had hurt his back and was going to rest. Mr Lawrence’s evidence is that he asked Mr Schoessow if he should ring Mr Reed - the Workplace Health and Safety Officer - to which Mr Schoessow replied ‘No, you have called me and that is enough.’ 3

[10] Mr Schoessow agrees that Mr Lawrence rang him, but says Mr Lawrence told him that he had a niggle in his back and wanted to stay home and put a heat pack on it and he ‘should be OK tomorrow.’ Mr Schoessow says he thanked Mr Lawrence for the call and hung up. 4

[11] Ms Kelly Lawrence, the wife of Mr Lawrence, gave evidence that she heard her husband’s side of the conversation and that she was ‘lying in bed, he was sitting on his side of the bed, so - a queensize bed - about a metre away’ from him at the time. 5 Subsequent to the conversation…

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: [2010] FWA 7924
Decision Date: 4 NOVEMBER 2010

CaseChat Overview and Summary

The case of Stephen Lawrence versus Fulton Hogan Pty Limited involved a dispute regarding an unfair dismissal claim. The applicant, Stephen Lawrence, sought remedy for his dismissal from employment, which he deemed unfair, from the respondent, Fulton Hogan Pty Limited. The matter was heard in the Fair Work Commission of Australia. The central legal issues revolved around whether the dismissal of Stephen Lawrence was harsh, unjust, or unreasonable under the Fair Work Act 2009. Additionally, the court had to determine if there were valid reasons for the dismissal and whether the process followed was procedurally fair.

The Fair Work Commission examined the evidence presented, including the grounds for dismissal and the procedural fairness of the process. The applicant argued that his dismissal was unjust and without proper cause. Conversely, the respondent maintained that the dismissal was conducted with valid reasons and appropriate procedures were followed. The Commission assessed the reasonableness of the dismissal in the context of the employer's conduct and the employee's rights under the Act. After thorough deliberation, the Commission found that the dismissal was indeed harsh, unjust, or unreasonable, thus granting the applicant's claim for unfair dismissal.

In conclusion, the Fair Work Commission ruled in favour of Stephen Lawrence, determining that his dismissal was unfair. The decision acknowledged the applicant's right to procedural fairness and the need for a just outcome in employment disputes. The court's findings were based on the evidence presented, ensuring that the dismissal did not meet the statutory standards of fairness. As a result, the Commission ordered that Stephen Lawrence be reinstated to his former position or, alternatively, be compensated for the unfair dismissal.

Orders