Travis Northey v Bradken Resources Pty Limited - [2013] FWC 6423

[2013] FWC 6423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Travis Northey
v
Bradken Resources Pty Limited
(U2012/17051)

DEPUTY PRESIDENT SAMS

SYDNEY, 13 SEPTEMBER 2013

Termination of employment - summary dismissal for serious misconduct - serious breaches of safety policies - explanations of employee not accepted - other admissions of employee - period of service and employment record considered - no procedural fairness issues - serious misconduct established as valid reason for dismissal - no sufficient mitigating circumstances - dismissal not harsh, unreasonable or unjust - application dismissed.

INTRODUCTION

[1] On 12 December 2012, Mr Travis Northey, a Leading Hand/Boilermaker was summarily dismissed from his employment at Bradken Resources Pty Ltd, Ipswich, Queensland (the ‘respondent’). The respondent claimed the applicant had engaged in serious misconduct on 6 December 2012, in that he had deliberately and wilfully breached a safety requirement and then, when taken to task in respect of the breach, lost his temper, lashed out, further endangering other employees and damaged company property (a ‘Do Not Enter’ sign).

[2] Mr Northey (hereinafter referred to as the ‘applicant’) lodged an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) for a remedy for unfair dismissal on 20 December 2012 claiming his dismissal was unfair, particularly given his 8 years of unblemished loyal service and that this was a single one off incident for which the penalty of dismissal was ‘harsh, unreasonable and unjust’. The matter was unable to be resolved at conciliation and consequently referred to me for arbitration in Brisbane.

[3] At the outset it can be safely assumed that the application is competently before the Fair Work Commission (the ‘Commission’) in that:

the application was filed with the Commission within the statutory time frame (s 394(2));

the applicant is a person protected from unfair dismissal (s 382);

there is no dispute that the applicant’s employment was terminated at the initiative of the employer (s 386);

the employer is not a small business as it employs 270 employees; and

the dismissal was not a case of genuine redundancy.

[4] As a result, the only matters for the Commission’s determination is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ according to the criteria set out at s 387 of the Act and if so found, what if any remedy should be awarded to the applicant. I shall come back to the relevant legislative provisions later. At this point, I propose to summarise the evidence adduced in this case from two witnesses for the applicant (himself and Mr Franklin) and eight witnesses for the respondent.

THE EVIDENCE

[5] The following persons provided written and/or oral evidence in the proceeding:

For the applicant

● Travis Northey, applicant;
● Steven Ernest Franklin, State Organiser for the Australian Manufacturing Workers’ Union (AMWU) (the ‘Union’).

For the respondent

● John Campbell, Supervisor, Machine Shop
● Robert Brand, Maintenance Planner
● David Taylor, Maintenance Worker
● Gary Frost, Manufacturing Manager
● Steven William…

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: [2013] FWC 6423
Decision Date: 13 SEPTEMBER 2013

CaseChat Overview and Summary

In the matter of Travis Northey v Bradken Resources Pty Limited, the Federal Circuit and Family Court of Australia was called upon to determine whether the termination of the appellant's employment was justified. The appellant, Travis Northey, contested his summary dismissal by Bradken Resources Pty Limited, asserting the dismissal was unfair and without valid grounds. The respondent maintained that the dismissal was warranted due to serious breaches of safety policies by the appellant.

The central legal issue the court needed to address was whether the respondent had established a valid reason for summarily dismissing the appellant and whether the dismissal was procedurally fair. The court examined the nature of the appellant's misconduct, his explanations for the actions, and his previous employment record. Additionally, the court considered whether the dismissal was harsh, unreasonable, or unjust in the circumstances.

The court found that the appellant's actions constituted serious breaches of safety policies, which the respondent substantiated with evidence. Despite the appellant's explanations, the court did not accept them as credible. The court also noted the appellant's lengthy period of service and his generally good employment record. However, the court concluded that the serious nature of the misconduct and the respondent's adherence to procedural fairness rendered the dismissal valid. The court held that there were no mitigating circumstances sufficient to alter the conclusion, and the dismissal was neither harsh nor unreasonable. As a result, the court dismissed the appellant's application.

Orders