Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jonathan Small
v
BHP WAIO Pty Ltd
(U2020/12242)

Application for an unfair dismissal remedy

[1] This decision concerns an application made by Mr Jonathan Small (the applicant) under section 394 the Fair Work Act 2009 (the Act). The respondent is BHP WAIO Pty Limited.

[2] On 4 November 2020, the Commission issued a decision and an order staying the proceedings of this application pending related criminal matters (Stay Order Decision).    1 That decision records the history of events leading up to the dismissal.

[3] The applicant stood trial in the related criminal proceedings in the District Court of Western Australia from 25 to 28 July 2022 since that decision was issued (Trial). The applicant was charged with 8 counts of sexual penetration without consent under s.325 of the Criminal Code Act Compilation Act 1913 (WA).

[4] The applicant was convicted of 6 of the 8 charges on 29 July 2022. The applicant was subsequently sentenced to 10 years’ imprisonment, with a minimum non-parole period of 8 years.

[5] The Commission wrote to the applicant on 12 September 2022. The applicant was notified that the Commission had been advised of his conviction and sentencing to a period of incarceration that section 381 of the Act requires the Commission to ensure that a fair go all round is accorded to both the employer and employee that it had been nearly two years since the applicant made his application and that in these circumstances, the Commission's preliminary view was that the application should be dismissed because he is unable to prosecute the application in a reasonable timeframe.

[6] The only response was received apparently from the applicant’s father by email on 20 September 2022. He advised that the applicant is currently in prison having been convicted but they have lodged an appeal which will take some time to go through the courts and that the applicant “...will want to pursue this if his appeal is successful.”

[7] This response was forwarded to the respondent, and they were invited to make any submissions regarding the Commission’s letter of 12 September 2022 by 4 October 2022.

[8] On 4 October 2022, the respondent made an application to the Commission for an order cancelling the Stay Order and dismissing the s.394 application pursuant to s.587(1)(c) of the Act with supporting submissions and witness statements.

[9] Consequently, the Commission forwarded the respondent’s application, submissions and witness statements to the applicant on 6 October 2022 and advised as follows,

“You are advised that the Commission having reviewed this application and the supporting materials filed by the Respondent is of the preliminary view that the application should be granted. This would mean that your unfair dismissal remedy application would be dismissed.

The Commission hereby directs you to file with the Commission and serve on the Respondent by no later than Friday, 28 October 2022 any witness statements, supporting documents and submissions you wish the Commission to have regard to before making a final decision.

The Commission intends to determine the Respondent's application on the basis of the written materials filed by the Respondent and yourself. Should you not file any materials by 28 October 2022, the Commission will proceed to determine the Respondent's application without further notice.”

[10] As at the date of this decision, the Commission has received no response from the applicant nor has been contacted by anyone on his behalf.

[11] Consequently, the Commission will now proceed to determine the respondent’s application based on the materials they have filed.

The respondent’s submissions

Cancelling the Stay Order

[12] The respondent submits that the Commission’s reasons for granting the Stay Order outlined in Small v BHP WAIO Pty Ltd are no longer applicable and the Stay Order should be cancelled. 2

[13] They submit that the primary justification for granting of the Stay Order was to avoid prejudicing the applicant’s ‘right to silence’ in the Related Criminal Proceedings. The respondent states that the evidence discloses the right to silence during the Trial on 28 July 2022, where the applicant appeared as a witness and was cross-examined in relation to the matters the subject of the Related Criminal Proceedings. 3 They submit that the incidents which led to the Related Criminal Proceedings were the same matters that led to the applicant’s dismissal.4

[14] The respondent submits that, as the applicant gave sworn testimony during the Trial and was subsequently convicted, the Related Criminal Proceedings have been ‘finalised’ within the meaning of paragraph [42] of the Stay Order Decision.

[15] In the alternative, the respondent submits that even if the Commission is of the view that the Related Criminal Proceedings have not been ‘finalised’ given the applicant is appealing his conviction, by choosing to give evidence at the Trial the applicant can no longer rely on his ‘right to silence’ in the application. 5 In those circumstances, the Commission can therefore be satisfied that proceeding to deal with the application would not prejudice the applicant’s rights.6

[16] The respondent argues that the applicant can no longer maintain the argument that dealing with the unfair dismissal application prior to the finalisation of the Related Criminal Proceedings, created the real prospect of a genuine injustice being done to the Applicant. 7

[17] The delay of the determination of the unfair dismissal application to allow for an appeal of the Related Criminal Proceedings is therefore no longer in the interests of justice. 8

[18] In fact, given nearly 2 years have elapsed since the unfair dismissal application was first lodged with the Commission, any further delay would be both contrary to the objects of the Act and prejudicial to the respondent. 9

[19] As the High Court held in Aon Risk Services Australia Limited v Australian National University:

“whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end… The stated object in the Court procedure Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings.” 10

[20] For the reasons set out above, the respondent submits that the reasons justifying the Stay Order, as set out in the Decision, no longer apply to the unfair dismissal application. Consequently, it is necessary and appropriate for the Stay Order to be cancelled.

[21] As is noted at paragraph [36] of the Stay Order Decision, the Commission has a wide discretion to exercise its power under s.589 of the Act to make procedural and interim decisions in relation to matters before it. The respondent submits that the circumstances described above merit the Commission exercising its discretion to cancel the Stay Order.

Dismissing the Unfair Dismissal Application

[22] The respondent submits that Commission has the power under s.587(1)(c) of the Act to dismiss an unfair dismissal application where the Commission is satisfied that the application has no reasonable prospects of success.

[23] The Commission’s power to dismiss an application under s.587 is one that “should be used sparingly and approached with caution.” 11

[24] The test is whether the Commission “is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.” 12 In other words the applicant’s case must be shown to be “manifestly untenable and groundless.”13

[25] In the circumstances of this matter, to be successful in his unfair dismissal application the Applicant must prove:

•  The conduct that was the reason for his dismissal did not in fact occur; 14 or

• The conduct that was the reason for his dismissal was not connected to his employment with the Respondent; 15  or

•  The Applicant’s dismissal was not carried out by the Respondent in a procedurally fair manner. 16

[26] The respondent submits that the applicant has no reasonable prospect of successfully arguing any of the above propositions. The Commission can therefore be satisfied that the UFD application is “so clearly untenable that it cannot possibly succeed.” 17

[27] There can be no doubt that if the conduct that was the reason for the applicant’s dismissal in fact occurred, it would be a valid reason for his dismissal.

[28] The evidence discloses that the Related Criminal Proceedings, which concerned the same conduct that led to the applicant’s dismissal, resulted in the Applicant being convicted of 6 counts of sexual penetration without consent under s.325 of the Criminal Code Act Compilation Act 1913 (WA). 18

[29] In Western Australia, where the applicant stood trial, the standard of proof in criminal proceedings is ‘beyond a reasonable doubt.’ 19 In Commission proceedings, by contrast, the standard of proof is the less onerous civil standard of ‘on the balance of probabilities.’20

[30] It would be illogical for the respondent to argue, or the Commission to accept, that conduct which has been proven to the criminal standard should not be found to have occurred ‘on the balance of probabilities.’ 21 The respondent note that the decision in the Related Criminal Proceedings has not been successfully appealed, and the Commission has no details before it as to the status of any appeal.

[31] Further, it would be contrary to the objects of the Act for the Commission to re-litigate factual matters that have been determined in other forums. 22 Such an approach would not ensure a “fair go all round.”23

[32] The Commission can therefore be satisfied that it has sufficient material before it to determine that the conduct in fact occurred.

[33] The four-member Full Bench in Sydney Trains v Bobrenitsky recently set out 2 circumstances in which out of hours conduct would have a sufficient connection with work:

•  where the employee engages in conduct which materially damages the employer’s interests in respect of its relationships with its clients and staff; 24 or

•  where the conduct has a significant effect on other employees or the efficient operation of the business. 25

[34] The respondent submits that both of the above circumstances are apt to describe the facts of this case.

[35] The evidence discloses that the applicant and the Related Criminal Proceedings have received significant coverage in the media. 26  In most of this coverage the Applicant is referred to as a former employee of the respondent.

[36] The media coverage of the Related Criminal Proceedings also occurred at a time that the mining industry in Western Australia was under significant public scrutiny, with the Trial having occurred just a few weeks after the publication of the report ‘Enough is Enough’: Sexual harassment against women in the FIFO mining industry by the Parliament of Western Australia’s Community Development and Justice Standing Committee. 27

[37] The respondent is a prominent member of the Western Australian mining industry and, as is evident from the media coverage of the Related Criminal Proceedings, has a very significant public profile (both within Australia and globally). The respondent submits that its reputation with its clients and staff would have been materially damaged if it had permitted the applicant to remain in employment after having become aware of the conduct that led to both his dismissal and, subsequently, the Related Criminal Proceedings. 28

[38] The Commission should therefore be satisfied there was a sufficient nexus between the applicant’s out of hours conduct and his employment.

[39] In the alternative, it is clear the misconduct engaged in by the applicant had a significantly detrimental impact on the person to whom the conduct was directed (Impacted Person). 29 Such a conclusion is axiomatic given the nature of the conduct itself.

[40] The Impacted Person was a colleague of the applicant and worked alongside him in the respondent’s business. 30 Consequently, the continued employment of the applicant in the same workplace as the Impacted Person was, self-evidently, untenable.31

[41] The Commission should be satisfied there is no basis upon which the applicant could argue that his out of hours misconduct lacked a clear connection to his employment with the respondent. The applicant’s dismissal for that conduct must therefore constitute a valid reason for termination.

[42] The respondent accepts that the Commission presently has no evidence before it regarding the manner in which the applicant was dismissed.

[43] The Commission can nevertheless be satisfied that the applicant cannot establish his dismissal was unfair, within the meaning of Act, based solely on procedural fairness considerations.

[44] The Commission’s interrogation of the procedural fairness of an employee’s dismissal, being those factors set out at s.387(b) to (g) of the Act, is directed solely towards answering one key question. Namely, whether the employee’s dismissal may have been avoided if the employer had followed a procedurally fair process in deciding whether or not to terminate the employee. 32

[45] The respondent submits that, such is the seriousness of the applicant’s proven misconduct, no outcome other than the applicant’s dismissal was reasonably conceivable in the circumstances. There are also no ‘other matters’ to which the Commission could be taken to, under s.387(h) of the Act, that would lead to a conclusion that the applicant’s dismissal was unfair. 33

[46] The inevitable conclusion is that, as the applicant’s misconduct can be safely found to have in fact occurred, the only conclusion reasonably open to the Commission is to find that his dismissal for that conduct was not unfair within the meaning of s.385 of the Act. 34 The Commission should conclude accordingly, and grant Order 2 of the orders sought in the respondent’s application.

Alternative Grounds to Dismiss Unfair Dismissal Application

[47] Even if the Commission is not of the view that the applicant’s case is manifestly groundless, the respondent argues that it should be satisfied that the matter should be dismissed for want of prosecution.

[48] In unfair dismissal proceedings, the onus rests on the party who initiated the matter to prosecute the case they allege the respondent should answer. 35

[49] In this case, the applicant has taken no steps to prosecute the UFD Application since the Related Criminal Proceedings were finalised on or about 2 August 2022.

[50] Further, it is unclear that the applicant will be able to prosecute his case any time in the near future. The applicant is currently incarcerated and is not currently represented in this matter.

[51] Similar circumstances were confronted by the Commission in Stockhausen v Damstra Technology Pty Ltd [2019] FWC 6009. In deciding that the Applicant’s matter should be dismissed for want of prosecution, Deputy President Boyce found at [52] and [55]:

“I do not accept that the Applicant will be in a position to prosecute his matter from prison. Nor do I accept that it would be fair upon the Respondent to allow the Applicant to give evidence via video-link from prison (i.e. even if video-link can or could be facilitated) due to likely issues of credibility that would arise at any merits hearing. I also do not accept that the Applicant will be released from prison within a timeframe that will not be prejudicial to the Respondent, and provide it with a “fair” opportunity to defend any allegations made against it.

…

I do not repeat or otherwise summarise the case law principles and considerations set out in this decision flowing from AON. Put simply, the Applicant has not discharged his responsibility to the Commission and the Respondent to confirm that he can prosecute his case in an appropriate and timely manner. Allowing the matter to remain on foot flies in the face of the efficient use of public resources, justice to other litigants before the Commission generally, the impact upon the Respondent (being its witnesses and employees), and the efficient and speedy resolution or conclusion of this litigation.”

[52] The respondent has already been put to cost as a consequence of the Applicant filing the unfair dismissal application. It would be unreasonable, in the absence of any effort by the Applicant to prosecute his case or any indication he has to the capacity to do so, for the Respondent to be put to further cost by the continued delay of the determination of this matter. 36

[53] On this basis alone, or in combination with the other grounds expounded upon above, the Commission should be satisfied the circumstances justify exercising its discretion under s.587 and making Order 2.

Conclusion

[54] In unfair dismissal proceedings, the Act requires a ‘fair go all round’ be accorded to both the employer and employee concerned. 37

[55] The Respondent submits that permitting this matter to continue would not, in the circumstances, be consistent with that obligation.

[56] For that reason, and the reasons outlined in these submissions, the Respondent’s argue that the Commission should grant the Orders sort in the Respondent’s Application. The Commission is not required by the Act to hold a hearing to determine the Respondent’s Application or dismiss the unfair dismissal application. 38

[57] Due to the uncomplicated nature of the matters at issue, including the immutability of the factual matrix under consideration (set out above), the Respondent submits that there is no need for the Commission to hold a hearing and can instead determine the Respondent’s Application on the papers.

The legislation

[58] Sections of the Act relevant to this matter include section 381 which is set out below.

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

[59] Section 587 is also relevant and is set out below.

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration

[60] Section 381 of the Act relevantly requires that the framework for dealing with unfair dismissal applications balances and addresses the needs of business and of employees with a procedure that is amongst other things, quick. The procedures and remedies are intended to ensure that a “fair go all round’ is accorded to both the employer and employee concerned.

[61] Section 587 prescribes some circumstances where the Commission may dismiss an application. However, these circumstances do not limit when the Commission may dismiss an application. The Commission may dismiss an application on its own initiative or on application of a party.

[62] Firstly, the Commission will consider the respondent’s application to cancel the Stay Order which remains in place.

[63] The Commission is satisfied that the applicant having been through the court proceedings concerning the related criminal proceedings would no longer be prejudiced by this application proceeding to be determined.

[64] The Commission’s prior decision granting the Stay Order was made on the basis that these proceedings should be stayed pending finalisation of the criminal proceedings. 39 The Stay Order was granted in order to not prejudice the applicant in the criminal proceedings.

[65] Given developments since the Stay Order was issued, the Commission is satisfied that for the purposes of the Stay Order those related criminal proceedings have now been finalised, notwithstanding an appeal of his conviction may be pursued by the applicant. Consequently, the reasons for issuing the Stay Order no longer exist.

[66] In all the circumstances, the Commission has decided to cancel the Stay Order previously issued.

[67] The Commission will now consider the respondent’s second application that the unfair dismissal remedy application should now be dismissed.

[68] On the evidence before the Commission as to the conduct of the related criminal proceedings considered and the subsequent conviction of the applicant, the Commission is satisfied that on the balance of probabilities, the conduct that was the reason for the applicant’s dismissal did occur. The Commission is also satisfied that this conduct was connected to the applicant’s employment and that, in the circumstances existing at that time of the dismissal, the dismissal was carried out in a procedurally fair manner.

[69] Consequently, the Commission’s decision is that this application should now be dismissed.

[70] Separately from the reasoning above, as the respondent submits, the onus is on the applicant who made this application to prosecute his case and the legislation includes an object that unfair dismissal remedy applications are to be dealt with quickly. The applicant has not sought in any way to prosecute his application since the related criminal proceedings were finalised in August 2022.

[71] The applicant is currently incarcerated which inhibits his capacity to prosecute his case.

[72] The applicant has been given a fair go all round with the Commission, having agreed to stay these proceedings in the interest of the applicant. The respondent employer is also entitled to be given a fair go in circumstances where this application has been on foot for over two years and there is no evidence the applicant is able to promptly prosecute his application. The Commission’s decision is therefore that it should now exercise its discretion under section 587 and dismiss this application.

[73] In summary, the Commission has decided that the previously issued Stay Order will now be cancelled and the applicant’s unfair dismissal application is now dismissed.

[74] Orders to that effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR747699>

 1   Small v BHP WAIO Pty Ltd [2020] FWC 5892; Order PR724246.

 2   [2020] FWC 5892.

 3   Rokich Statement at [6], [10], [15] and attachment CR-1.

 4   Ibid at [9]. Scott Statement at [5].

 5   Section 8(a) and Section 11 of the Evidence Act 1906 (WA); Environment Protection Authority v Caltex Refining Co. Pty. Limited (1993) 178 CLR 477 at [12], citing Sorby v The Commonwealth (1983) 152 CLR 281 at 294; The Queen v Baden-Clay (2016) 258 CLR 308 at [57]-[58].

 6   Cooper v Australian Taxation Office [2014] FWC 2931 at [14]-[18].

 7   Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man [2000] Print S8287 at [35].

 8   Visy Board Pty Ltd T/A Visy Board v Rustemovski & Anor. [2018] FWCFB 1255] at [49]; Pontinen v Ingleburn Veterinary Hospital [2016] FWC 3581 at [37]; Commissioner of the Australian Federal Police v Zhao [2015] 255 CLR 46 at [36].

 9   Section 381(1)(b)(i) of the Act. Small v BHP WAIO Pty Ltd [2020] FWC 5892 at [37]-[38].

 10   Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at [101].

 11   Thomas v Highway NN Pty Ltd [2020] FWC 3911 at [15]; Munn v The Grout Guy Pty Ltd as trustee for the Young Enterprises Trust T/A The Grout Guy [2019] FWC 3772 at [21].

 12   Resta v Myer Pty Ltd [2013] FWC 7080 at [39], citing General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Ors. (1964) 112 CLR 125 at 128–129.

 13   Tunstead v Busways North Coast Pty Ltd [2020] FWCFB 25 at [32], citing Wright v Australian Customs Services [2002] AIRCFB PR926115 at [23].

 14   Edwards v Justice Giudice (1999) 94 FCR 561 at [6]-[7]; Container Terminals Australia Limited v Toby [2000] AIRCFB Print S8434 at [13]; King v Freshmore (Vic) Pty Ltd [2000] AIRCFB Print S4213 at [23]-[24].

 15   Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 at [148]-[150], citing Rose v Telstra Corporation Ltd [1988] AIRC Print Q9292.

 16   Sections 387(b) to (g) of the Act; B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [41].

 17   Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 84.

 18   Rokich Statement at [7], [9], [11], [15] and attachment CR-2.

 19   Galipo v The State of Western Australia [2017] WASCA 188 at [23], citing Wells v The State of Western Australia [2017] WASCA 27 at [13]; Momcilovic v The Queen (2011) 245 CLR 1 at [44].

 20   Stewart v P.O.D’s Pest Control [2013] FWC 9168 at [13]-[14]; Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 at [58]; Amiatu v Toll Ipec Pty Ltd T/A Toll & Ors. [2015] FWC 3924 at [110]; Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO [2018] FWC 1824.

 21   Box v Marshall Security Service Pty Ltd T/A Marshall Security Service [2016] FWC 6 at [30] and [32]; Lyzette v Safe Places for Children [2020] FWC 4770 at [23]; Mickelberg v Director of the Perth Mint [1986] WAR 365 at 372.

 22   Section 381(1)(b)(i) and (2) of the Act.

 23   Section 381(2) of the Act and In re Loty & Anor. v Australian Workers’ Union (1971) AR (NSW) 95 at 99.

 24   Sydney Trains v Bobrenitsky [2022] FWCFB 32 at [148], citing Wakim v Bluestar Global Logistics [2016] FWC 6992.

 25   Ibid at [149], citing McNamus v Scott-Charlton (1996) 70 FCR 16 and Re Transfield Pty Ltd [1974] AR (NSW) 596.

 26   Rokich Statement at [10] to [15] and attachments CR-1 to CR-4. Scott Statement at [6] to [9] and attachments CS-1 and CS-2.

 27   Rokich Statement at [12] and attachment CR-3

 28   Wakim v Bluestar Global Logistics [2016] FWC 6992 at [35].

 29   Scott Statement at [7], [9] and attachment CS-2.

 30   Ibid at [6] to [9] and attachments CS-1 and CS-2.

 31   Sydney Trains v Bobrenitsky [2022] FWCFB 32 at [149], citing McNamus v Scott-Charlton (1996) 70 FCR 16 at 29 and Re Transfield Pty Ltd [1974] AR (NSW) 596 at 599.

 32   Turvey v Roverworth Pty Ltd [2021] FWC 4593 at [102]; Eva v Summit Innovations Pty Ltd [2016] FWC 4095 at [148]; Hafer v Ensign Australia Pty Ltd T/A Ensign International Energy Services [2016] FWC 990 at [62] and [71].

 33   Hunt v Coomealla Health Aboriginal Corporation T/A Coomealla Health Aboriginal Corporation [2018] FWC 3743

 34   Cooper v Australian Taxation Office [2014] FWC 7551 at [42] and [56].

 35   Ward v Great Southern Rail Pty Ltd T/A Great Southern Rail [2019] FWC 5064 at [195].

 36   Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy [2019] FWC 6264 at [19]; Lynch v Reward Hospitality [2021] FWC 304 at [42].

 37   Viavattene v Health Care Australia [2013] FWCFB 2532 at [39] and s.381(2) of the Act.

 38   Section 399(1) and 593 of the Act.

 39   [2020] FWC 5892.