Taylor Collier v Qube Ports Pty Ltd - [2023] FWC 3040

[2023] FWC 3040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Taylor Collier
v

Qube Ports Pty Ltd

(U2023/5304)

DEPUTY PRESIDENT EASTON

SYDNEY, 20 NOVEMBER 2023

Application for an unfair dismissal remedy- valid reason found – causing damage while moving a vehicle – unblemished employment history – employee accepted full responsibility –no evidence to establish employee was careless - dismissal was harsh and unreasonable - remedy – reinstatement – payment for lost remuneration - Application for an unfair dismissal remedy

Background

Ms Taylor Collier worked at Qube Ports Pty Ltd’s Port Kembla operation from 2018 until her dismissal on 25 May 2023. Initially Ms Collier was employed through a labour hire company. From 4 February 2020 Ms Collier was employed directly by Qube Ports Pty Ltd.

On 26 March 2023 Ms Collier was moving a Mercedes SUV inside a vessel and hit a stanchion, causing significant damage to the front corner of the vehicle. Qube Ports Pty Ltd (Qube) investigated the matter over the next two months and decided on 25 May 2023 to terminate Ms Collier’s employment.

On 15 June 2023 Ms Collier made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Qube. Ms Collier seeks reinstatement to her former position and compensation.

The evidence

Two witnesses gave evidence in the proceedings: Ms Collier and Mr Bernie Ryan. Mr Ryan is the Operations Manager at Port Kembla.

Save for some photographs, Qube led no direct evidence about the incident. Mr Ryan investigated the matter and interviewed Ms Collier and others. His evidence is at best his recollection and analysis of what others told him.

Ms Collier was employed as a stevedore and she described her job to be ensuring the proper loading, stowage and unloading of ships. In her work as a stevedore Ms Collier worked in a number of different roles including Breakout Team member, Bus Driver, Guide, Parking, Bobcat Driver and Car Team.

Ms Collier had an unblemished employment record.

On 26 March 2023 Ms Collier had an accident inside a Pure Car Carrier (PCC) vessel. On that day Ms Collier was working as a Breakout Team member. Unsurprisingly, cargo and motor vehicles are packed tightly into PCC vessels and the Breakout Team performs the careful task of moving vehicles from the various decks/levels of the vessel to an Intermediate Point of Rest (IPR). The vehicles are then driven off the vessel by others who collect the vehicles from the IPR.

On 26 March 2023 the Breakout Team consisted of the Breakout Foreman, the Breakout Guide, a mechanic and two Breakout Wharfies. Ms Collier was one of the two Breakout Wharfies.

The role of the Breakout Guide is to work across the rows of tightly parked vehicles and direct the breakout wharfies out of the confined area.

In her written evidence in chief Ms Collier described the…

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.

Keep reading for free

Create a free CaseChat account to read Taylor Collier v Qube Ports Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 3040
Decision Date: 20 NOVEMBER 2023

CaseChat Overview and Summary

Taylor Collier, a former employee of Qube Ports Pty Ltd, sought a remedy for her dismissal from the Fair Work Commission under section 394 of the Fair Work Act 2009. Collier's application was predicated on the claim that her dismissal was unfair, unjust, and harsh. The Fair Work Commission found that Collier's dismissal was indeed unfair. The Deputy President, Easton, concluded that while causing damage to a vehicle was a valid reason for dismissal, it was unreasonable to dismiss Collier without a prior warning. Additionally, the employer failed to provide Collier with an opportunity to respond to the allegation that she had not accepted responsibility for her actions. Consequently, the Deputy President ruled that Collier's dismissal was unfair.

In response to Collier's application, the Deputy President ordered her reinstatement to her former position, effective within 21 days. The order also mandates that Qube Ports Pty Ltd compensate Collier for lost remuneration. The compensation amount will be calculated by deducting any income Collier earned from other employment during the period between her dismissal and the reinstatement order, as well as any amount paid by Qube in lieu of notice, from her ordinary time earnings. This amount will then be reduced by a further 15%, reflecting Collier's mistake on 26 March 2023. The Deputy President directed the parties to confer on the calculation of the lost pay and to file submissions and any supporting evidence by a specified deadline if an agreement on the amount payable is not reached by 29 November 2023.

Orders