Kennelly, Barry Ronald v Incitec Ltd [1998] FCA 1470

FEDERAL COURT OF AUSTRALIA

EMPLOYMENT - termination of employment - summary dismissal - whether conduct constituted 'serious misconduct' within meaning of s 170CM(1)(c) Workplace Relations Act 1996 - where employee operated equipment at fertiliser packing plant in contravention of workplace safety procedures, in circumstances where other contraventions by fellow employees of safety procedures were associated with the incident in question - whether onus on employer to prove serious misconduct on part of employee. Workplace Relations Act 1996 ss 170CP, 170CM(1)(c), 170CR Workplace Relations Regulations 1989 reg 30CA Vines v Djordjevitch (1955) 91 CLR 512 applied McLean v Tedman (1984) 155 CLR 306 cited Boral Resources Queensland Pty Ltd v Pike [1992] 2 QdR 25 cited BARRY RONALD KENNELLY v INCITEC LTD No QG 173 of 1997 SPENDER J BRISBANE 29 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 173 of 1997

BETWEEN: BARRY RONALD KENNELLY

Applicant

AND: INCITEC LTD ACN 010 767 283

Respondent

JUDGE(S): SPENDER J

DATE OF ORDER: 29 October 1998

WHERE MADE: BRISBANE

THE COURT ORDERS: The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 173 of 1997

BETWEEN: BARRY RONALD KENNELLY

Applicant

AND: INCITEC LTD ACN 010 767 283

Respondent

JUDGE(S): SPENDER J

DATE: 29 October 1998

PLACE: BRISBANE

REASONS FOR JUDGMENT This is an application pursuant to s 170CP(2) of the Workplace Relations Act 1996 ('the Act'). The applicant seeks an order pursuant to s 170CR(4) of the Act on the basis that the respondent has contravened s 170CM of the Act. Incitec Ltd ('Incitec') terminated Mr Kennelly's employment at the Gibson Island plant of the respondent on 10 September 1997 because of an incident which occurred at the workplace on 8 September 1997. The termination was without notice or payment in lieu of notice, the respondent contending that Mr Kennelly was guilty of serious misconduct within the meaning of s 170CM(1)(c) of the Act. If Mr Kennelly was not guilty of serious misconduct, s 170CM(1) of the Act required that he should receive the notice specified in s 170CM(2) or compensation in lieu thereof. Incitec admits that it employed Mr Kennelly from 10 January 1981 to 10 September 1997 and that, if Mr Kennelly was not guilty of serious misconduct, it would have been required pursuant to s 170CM(2) to have paid Mr Kennelly the equivalent of five weeks' pay in lieu of notice. This amounts to a gross figure of $5095.34. The Act relevantly provides: "Section 170CP (1) Subject to subsection (8), an employer must not terminate an employee's employment unless: