REASONS FOR DECISION

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

Ms Kim Star
v
WorkPac Pty Ltd T/A WorkPac Group
(U2017/12786)

Application for an unfair dismissal remedy – Provisional view that reinstatement should be granted – Applicant provided with opportunity to consider Commission’s reservations in relation to reinstatement – Applicant presses reinstatement – Finding that Respondent should not be permitted to call further evidence in relation to matters that could and should have been placed before the Commission in substantive hearing – Ancillary orders sought by Respondent refused – Reinstatement ordered.

BACKGROUND

[1] In a Decision issued on 28 August 2018 1, I found that Ms Kim Star had been unfairly dismissed and expressed a provisional view that if Ms Starr pressed her previous submission for reinstatement, that I would issue an Order to that effect. I also made some observations about the difficulties which Ms Star may encounter if an Order for reinstatement is made.

[2] In summary, Ms Star was employed by WorkPac Pty Ltd (WorkPac) as a casual employee to perform work at the Goonyella Riverside Mine (the Mine) pursuant to a contract for the supply of labour between WorkPac and BHP Billiton Mitsubishi Alliance (BMA) the owner and operator of the Mine. Ms Star was dismissed by WorkPac on 13 November 2017 when it removed her from the Mine site following a direction issued by BMA on 10 November 2017. I found that the dismissal was unfair for reasons including:

● It is more probable than not that the directive from BMA was related to Ms Starr’s conduct on a night shift on 9 November 2018 or perceptions about that conduct on the part of Ms Star evidenced by BMA’s documentary records of events on that shift;

● I was satisfied that Ms Starr’s dismissal related to her conduct;

● I was unable to be satisfied that the conduct was a valid reason for dismissal;

● There was no evidence of any other reason – valid or otherwise – for a directive to remove Ms Star from a role she had performed for four years at the Mine;

● There was no discussion with Ms Star about the direction to remove her from the Mine site and the consequential termination of her employment being effected; and

● There was no attempt by management of WorkPac to discuss the direction with relevant persons from BMA to confirm the reason for the direction to remove Ms Star from the Mine site or whether provisions of the contract between WorkPac and BMA in relation to unsatisfactory performance by WorkPac personnel applied.

[3] While expressing a provisional view that I would order reinstatement if it was pressed by Ms Star, I indicated (in summary) that I had reservations about whether reinstatement is appropriate in circumstances where WorkPac has no right to insist that BMA give Ms Star access to its site and that subject to BMA making reasonable attempts to persuade BMA to the contrary, Ms Star could be placed in a position where her incapacity to work at that site was a valid reason for dismissal at a future time.

[4] I provided Ms Star with a period of time to consider her position and in particular whether reinstatement was pressed in the light of the views I expressed. I also provided the parties with the opportunity to have further discussions in an attempt to resolve the matter, with the assistance of a member of the Commission if requested.

FURTHER HEARING

[5] On 4 September 2018 Ms Star’s legal representative confirmed by email (copied to the Respondent) that Ms Star sought reinstatement to her position with WorkPac at the Goonyella Riverside Mine and Orders to maintain the continuity of her employment.

[6] Following receipt of that correspondence I caused my Associate to email the Respondent’s legal representative requesting that any views in relation to the correspondence from Ms Star’s legal representative be provided by close of business on 5 September 2018. On 5 September 2018 Mr Murray Procter of ClarkeKann Lawyers on behalf of WorkPac sent correspondence in response repeating the submission made at hearing that:

“…the position in which the Applicant was employed immediately before her dismissal was that of a casual Field Team Member assigned to work at the mine in circumstances where the Respondent’s client … (BMA) had directed the Respondent that the Applicant’s services were no longer required at the Mine.”

[7] The correspondence went on to assert that, based on the evidence at the hearing, WorkPac has no authority to direct or require BMA to reinstate Ms Star to her former position at the Mine and that an order for reinstatement should result in WorkPac reinstating Ms Star as an active member of its prospective labour pool for whom the Respondent will attempt to source an acceptable assignment. The correspondence also indicated that if this order was made, ancillary orders would also be sought in the following terms:

“1. The Applicant is ordered to:

(i) within five (5) days of the date on which the order for reinstatement is made:

(A) notify the Respondent when the Applicant has resigned from her current employment, and:

(I) the final date of that employment, after which the Applicant will be available to commence any assignments for the Respondent; or, otherwise

(II) when the Applicant would be available to commence any assignments for the Respondent; and

(B) provide the Respondent with an updated resume; and

(ii) respond in a timely fashion to all communications from the Respondent regarding available employment assignments.”

[8] The Applicant’s representative Mr Joseph Kennedy of Hall Payne Lawyers responded to this correspondence objecting to it on the grounds that the Applicant was not made aware that the Respondent was seeking ancillary orders before the letter was sent to the Commission and asserting that the Respondent was attempting to re-litigate matters already determined by the Commission, including but not limited to whether a reinstatement order should be made at all. The Applicant sought an opportunity to be heard in response if the Commission was minded to consider the matters set out in the Respondent’s correspondence.

[9] The matter was listed for hearing on 12 September 2018 for the purposes of dealing with these issues. Subsequently, Mr Procter on behalf of WorkPac again corresponded with the Commission by email sent at 3.40 pm on 11 September 2018 advising that he was instructed to call an employee of the Respondent to give evidence at the hearing. On my instructions, my Associate corresponded with Mr Procter and informed him that leave would be required for the Respondent to call evidence and that he would need to seek such leave at the hearing.

[10] After hearing from the parties I decided that I would not allow the Respondent to call further evidence in relation to remedy and that an order for reinstatement, continuity of employment and payment for remuneration lost as a result of the dismissal would issue and that the order would require the Respondent to reinstate Ms Star to the position she held immediately prior to her dismissal – as a Level 3 Mineworker at BMA BHP Billiton Goonyella Goal Mining. I further indicated that I would provide written reasons for so deciding. Those reasons are set out below.

CONSIDERATION

[11] In the substantive decision issued on 28 August 2018, I found that the employment relationship between Ms Star and WorkPac was entered into on the basis that Ms Star was employed to work only at the Goonyella Mine. I also found that there was no subsisting employment relationship that existed independently of the Goonyella assignment so that when WorkPac ended that assignment, it terminated Ms Star’s employment.

[12] The submission that reinstatement would have the effect of WorkPac reinstating Ms Star as an active member of its prospective labour pool for the purposes of WorkPac finding an alternative assignment is inconsistent with my findings about the basis of Ms Star’s employment with WorkPac, and does have the appearance of WorkPac attempting to re-litigate matters already decided. Contrary to the submission now advanced by WorkPac, reinstatement will place Ms Star in the position that she held immediately prior to her dismissal – Mine Worker Level 3 at the Goonyella Riverside Mine. WorkPac will then be in a position where it can take the steps it should have taken prior to dismissing Ms Star including making reasonable attempts to ascertain the reason for the directive from BMA to remove her from the Mine site and establishing whether provisions of the contract between WorkPac and BMA in relation to unsatisfactory performance by WorkPac personnel applies in Ms Star’s case.

[13] WorkPac also sought to tender a statement made by Mr Howard Powell, WorkPac’s National Group Employee Relations Manager made on 11 September 2018, well after the substantive Decision was released. In the statement Mr Powell says that he made contact with BMA’s Manager Employee Relations on 10 September asking whether Ms Star would be granted access to the site in the event that an order for reinstatement was made, and was informed in writing that BMA would not consider reinstatement of Ms Star.

[14] I refused leave for WorkPac to tender the statement or to call further evidence. As I found in the substantive decision, WorkPac did not place evidence before the Commission about the appropriateness of reinstatement other than to assert that BMA had issued a direction to remove Ms Star from the Mine site. Ms Star sought reinstatement from the outset and has not wavered from her position. WorkPac knew that this was the case. The Company was represented by a lawyer in the proceedings and there is no reason why evidence of the kind sought to be given by Mr Powell at this late stage, could not have been placed before the Commission in the substantive proceedings. To allow WorkPac to place this statement into after the substantive Decision has been released and when a provisional view about reinstatement has been expressed, would be tantamount to allowing the Company to re-open its case. This is an exceptional step which is not warranted in circumstances where there was a failure to call evidence about a matter that was central to the Applicant’s case at all times.

[15] The provisional view was expressed to allow Ms Star to address my reservations about the future operation of an order for reinstatement in the event that BMA maintained its position as established by the evidence in the substantive hearing. It was not an invitation to WorkPac to call new evidence, particularly evidence that it could have called at the substantive hearing.

[16] The finding that Ms Star was unfairly dismissed was based in part on the failure of WorkPac to take reasonable steps to make enquiries of BMA before effecting the dismissal. It would be unfair and inappropriate to allow WorkPac to counter or defeat the remedy of reinstatement by giving evidence well after the Decision in Ms Star’s unfair dismissal application was made, of an action that it should and could have taken before Ms Star was unfairly dismissed.

[17] Even if I had decided to admit the evidence, it would not have changed my view. Taken at its highest, the evidence WorkPac sought to place before the Commission in relation to the enquiry made by Mr Powell does not indicate that any attempt has been made to establish the reasons for the direction to remove Ms Star in the first place. In short, the enquiry made by Mr Powell is too little, too late and does nothing to address the failings which led to a finding that Ms Star was unfairly dismissed.

[18] Ms Star succeeded in establishing that her dismissal was unfair and for reasons given in the substantive Decision, and in light of the fact that Ms Star presses reinstatement, I confirm my provisional view that Ms Star should have the primary remedy for unfair dismissal – reinstatement. I also confirm my provisional view that Ms Star should be reinstated to the position from which she was unfairly dismissed – Level 3 Mine Worker at Goonyella Riverside Mine. In those circumstances it is also not appropriate to make the ancillary orders sought by WorkPac. It is axiomatic that Ms Star will need to resign from her alternative employment prior to being reinstated. As I observed at the hearing on 12 September, it is probable that there is more water to go under the bridge with respect to compliance with the Order I intend to issue and I see no purpose in requiring Ms Star to resign from the alternative employment that she has obtained – which has had the effect of mitigating the loss resulting from her unfair dismissal – any earlier than is required to take up reinstatement in accordance with the Order.

CONCLUSION AND ORDER

[19] Accordingly, an Order will issue with this Decision requiring that WorkPac:

● Reappoint Ms Star to her former position – Level 3 Mine Worker at Goonyella Riverside Mine pursuant to s. 391(1)(a);
● Maintain the continuity of Ms Star’s employment and her period of continuous service pursuant to s. 391(2); and
● Pay Ms Star an amount of $4,475.00 for remuneration lost because of the dismissal pursuant to s. 391(3).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991.