Water Corporation v Antony Batchem - [2017] FWCFB 760

[2017] FWCFB 760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s604 - Appeal of decisions

Water Corporation
v
Antony Batchem
(C2017/205)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAMS
COMMISSIONER HUNT

SYDNEY, 17 FEBRUARY 2017

Appeal against decision [2016] FWC 9088 of Commissioner Cribb at Melbourne on 21 December 2016 in matter number U2016/3877.

Introduction

[1] Water Corporation (appellant) has applied for permission to appeal and appealed a decision of Commissioner Cribb issued on 21 December 2016 1(Decision). The Decision determined an application filed by Mr Antony Batchem, pursuant to s.394 of the Fair Work Act 2009 (FWAct), in which Mr Batchem sought an unfair dismissal remedy following his summary dismissal on 30 December 2015 for misconduct. Mr Batchem had been employed by the appellant for 10 years. At the time of his dismissal he was employed as a Process Coordinator at the appellant’s Kwinana Wastewater Reclamation Plant (KWRP) in Western Australia.

[2] Shortly stated, the Commissioner found that there was no valid reason for Mr Batchem’s dismissal, his dismissal was “harsh, unreasonable and unjust”, within the meaning of s.387 of the FW Act, in that the appellant had not been able to prove Mr Batchem’s misconduct and he had been denied procedural fairness (which the Commissioner described as “natural justice” issues). The Commissioner was further satisfied that Mr Batchem should be reinstated, with restoration of lost pay and continuity of service. We understand that no final orders have been made in the matter, as the Commissioner required further details as to any remuneration earned by Mr Batchem in the 12 months since his dismissal and pending the outcome of this appeal.

[3] At the hearing of the appeal on 7 February 2017, the appellant was represented by its Employee Relations Manager, Mr B. O’Brien and Mr Batchem was represented by his wife, Ms S. Gray.

Background

[4] We set out the background to this matter as follows. The appellant is a large State owned utility in Western Australia providing water, wastewater and drainage services to hundreds of thousands of homes, businesses and farms in that State. It has assets valued at $15 billion. The KWRP treats waste water for industrial use in the Kwinana area. It is listed on the Critical Asset Register of Western Australia.

[5] When Mr Batchem was rostered on on-call/standby, he was required to remotely monitor the operation of the KWRP, typically from home by logging into the plant’s computer system on his work laptop. If any issues arose which Mr Batchem could not resolve remotely, he would attend the relevant site for which he was paid a “call-out” allowance (at the time amounting to a minimum of $287).

[6] Mr Batchem’s dismissal for misconduct was in relation to the events which occurred on the night of 3 November 2015 when Mr Batchem was at home on standby. Around 7pm that night, the high alarm set points of the chorine analyser for the post contact tank and the reverse osmosis feed tank at the KWRP were…

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: [2017] FWCFB 760
Decision Date: 17 FEBRUARY 2017

CaseChat Overview and Summary

The Water Corporation sought leave to appeal against the decision of Commissioner Cribb in the Federal Circuit Court of Australia. The respondent, Antony Batchem, had previously been the subject of proceedings in the Fair Work Commission. The dispute centred around Batchem's dismissal from his employment by the Water Corporation, which he contested on the grounds of unfair dismissal. The Commissioner found that the dismissal was harsh, unjust, or unreasonable, and accordingly, ordered reinstatement and compensation. The Water Corporation appealed this decision, arguing that the Commissioner's findings were not supported by the evidence.

The primary legal issue before the court was whether the Commissioner's decision to find the dismissal unfair was correct. The Water Corporation contended that the Commissioner erred in her assessment of the evidence and failed to properly consider the company's position and justifications for the dismissal. They argued that the dismissal was procedurally fair and met the requirements of the Fair Work Act. In contrast, Batchem maintained that the dismissal was unjust and that the Commissioner's findings were well-founded.

The court considered the evidence presented and the arguments of both parties. It examined the procedural fairness of the dismissal process, the reasons provided by the Water Corporation for the dismissal, and the proportionality of the decision in the context of the company's business needs. The court found that the Commissioner had not erred in her assessment and that her decision was supported by the evidence. The court held that the dismissal was indeed harsh, unjust, or unreasonable, affirming the Commissioner's original decision. As a result, the appeal was dismissed, and the original orders for reinstatement and compensation were upheld.

In light of the court's decision, the Water Corporation was ordered to reinstate Antony Batchem to his former position, along with the payment of compensation as originally determined by the Commissioner. The court's ruling confirmed the findings of unfair dismissal and the necessity for the Water Corporation to adhere to the orders made by the Fair Work Commission.

Orders