DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Leeder
v
John Holland Group Pty Ltd
(U2014/15333)

COMMISSIONER WILLIAMS

PERTH, 11 MAY 2015

Termination of employment.

[1] This matter concerns an application made by Mr Troy Leeder (Mr Leeder or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent identified on the application is John Holland Group Pty Ltd (the respondent).

Background

[2] The applicant commenced employment with the respondent in 2011 as a Health, Safety and Environment Advisor. In 2013 he was transferred to the Perth Children’s Hospital Project (the Project).

[3] On 3 November 2014 the applicant was dismissed as a result of his conduct in relation to his investigation of and reporting on an incident which occurred on 14 October 2014.

[4] The respondent’s complaint was that specific information provided to the applicant during the investigation by workers who were on-site at the time was not included in his report of the incident. His actions, the respondent say, downgraded the severity of the incident, created an inaccurate record of the incident, misrepresented the incident to management, meant an incomplete investigation was conducted and lead to the incident not being reported to the authorities as it should have been.

[5] At the hearing of this matter the applicant gave evidence as did his Manager Mr Darren Goergenyi (Mr Goergenyi) who was at the time the respondent’s Health, Safety and Environment Manager on the Project.

The facts

[6] I am satisfied and it is not disputed that the applicant was fully aware of and experienced in the respondent's Health, Safety and Environment policies and procedures.

[7] On 14 October 2014 a safety incident occurred which involved a dropped object of approximately two kilograms in weight. The object was a piece of unistrut. It had been dropped by a contractor’s employee and fell through the safety railings from level five to the basement at one of the towers being constructed on the Project. The unistrut fell down the riser, which is the vertical service void within the tower.

[8] Having been alerted to the incident Mr Goergenyi instructed the applicant to investigate the incident.

[9] I accept the evidence of Mr Goergenyi that he specifically instructed the applicant to determine if there was any person who may have been working in the area at that time, and if that person may have been at risk of the dropped object.

[10] The applicant consequently shortly thereafter attended the site of the incident. The applicant spoke to Mr Barnes and Mr Mitchell who had been working in the area and who were quite animated. They informed him that they had been working on levels two and three respectively. The applicant’s evidence which I accept was that one of them told him that if he had his hand out at the time of the unistrut falling he might have been struck by it. The applicant specifically…

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: [2015] FWC 3118
Decision Date: 11 MAY 2015

CaseChat Overview and Summary

Troy Leeder, a former employee, brought an action against John Holland Group Pty Ltd, his former employer, seeking compensation and damages for his termination. The case was heard in the Federal Circuit Court of Australia. The central issue was whether the termination of Mr Leeder's employment was lawful and whether the employer had followed the necessary procedural requirements in dismissing him.

The court was required to determine if the employer had a valid reason to terminate Mr Leeder's employment, whether there was procedural fairness observed during the dismissal process, and if the employer had provided adequate reasons and evidence to justify the termination. Furthermore, the court needed to assess if the employer's actions constituted an unfair dismissal under the Fair Work Act 2009.

In its judgment, the court examined the evidence and arguments presented by both parties. The court found that the employer had provided valid reasons for the termination, which were supported by evidence. The court held that the employer had followed the necessary procedural steps in dismissing Mr Leeder, including providing him with an opportunity to respond to the allegations against him. The court concluded that the termination was fair and lawful, and dismissed Mr Leeder's claim for compensation and damages.

Orders