Dawson coal mine sick leave sacking upheld

The Federal Court has rejected an appeal against the dismissal of an Anglo American employee, citing legal strategies as the reason for failure of the appeal.

Local CFMEU president and Dawson coal mine plant operator Stephen Byrne appealed a Federal Court decision earlier this year, which had found that Anglo American acted within the law when they dismissed Byrne.

In April last year Byrne asked superintendent Andrew Lawn  if he could take two days of annual leave for reasons of sickness, but was refused permission.

A local GP declared Byrne unfit for work for two days and prescribed antibiotics, however Byrne was terminated two weeks after his return to work.

It was determined at the trial that Byrne had indeed been genuinely sick, and that his claim of sick leave was valid.

Anglo American and mine manager Tony Power argued that Byrne had acted dishonestly, however Byrne said that he was genuinely sick, and had asked to use annual leave because it was considered conventional to use up annual leave as a courtesy to the employer.

Justices Jessup, Buchanan and Rangiah ruled against the appeal, however in his closing comments Justice Rangiah said the question of what the employer’s reasons for dismissing Mr Byrne were considered on the basis of what the employer knew or believed at the time of the dismissal.

“The primary judge found that the decision-maker genuinely, although wrongly, believed that Mr Byrne had acted dishonestly. That belief was brought about by Mr Byrne’s conduct,” Ranghiah said.

“The fact that it was demonstrated at the trial that Mr Byrne was in fact genuinely sick and entitled to take sick leave could not be determinative of the employer’s reasons for dismissing him at an earlier time.

Justice Rangiah said he had some concerns about whether the outcome of the ruling was unjust, raising the issue of legal strategy employed by the CFMEU.

Justice Rangiah said Byrne could have applied to the Fair Work Commission under section 394 of the FWA for a remedy for unfair dismissal.

“Under s 385, a person is unfairly dismissed if the Fair Work Commission is satisfied, relevantly, that the dismissal was harsh, unjust or unreasonable,” Rangiah said.

“Sections 725, 727 and 729 required Mr Byrne to elect whether to proceed under the general protections provisions or the unfair dismissal provisions of the FWA.

“The appellants made a tactical decision to proceed under s 340(1) and s 352, presumably because of a perceived advantage in attracting the reversal of onus of proof under s 361, and because the employer would be exposed to a pecuniary penalty for contravention of civil remedy provisions.

“The disadvantage of that course was that it allowed the respondent the opportunity to discharge its onus of proof by proving that the dismissal was not because of a proscribed reason.

“If Mr Byrne had applied under s 394 and the Fair Work Commission had made the same findings of fact as those made by the primary judge, it seems inevitable that his dismissal would have been regarded as harsh, unfair or unjust, and that he would have been reinstated.

Justice Rangiah also said that by alleging that Anglo American had breached contract, Byrne had abandoned any claim for damages.

“In these circumstances, the absence of any remedy is a consequence of the tactical decisions made by the appellants,” Rangiah said.

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