s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - relief

• [1] Mr David Weule ("the Applicant") has applied to the Fair Work Commission ("the Commission") for a remedy, alleging that he was unfairly dismissed from his employment with Central Queensland Services Pty Ltd ("the Respondent"), which employed him to work at BM Alliance Coal Operations Pty Ltd's Caval Ridge Mine.

• [2] On 7 May 2025 I decided that the Applicant was to be reinstated, with orders as to continuity of employment and period of continuous service, and loss of pay. I provided the parties with an opportunity to confer as to the form and content of the orders, and to allow them to be heard in that regard.

• [3] The parties were unable to reach consensus on the form and content of the orders.

• [4] The applicant filed written submissions and a draft order on 12 June 2025. The Respondent filed written submissions (including a draft order) and a statement of Ms Katherine Langdon on 18 June 2025. The Applicant filed submissions in reply, an amended draft order, and a further statement of Mr Weule on 20 June 2025. Mr Weule's statement did not seek to contest the assertions in Ms Langdon's statement.

• [5] The Respondent's submissions of 18 June indicated that it wished to be heard if the Applicant's submissions raised any new matters. The Respondent reiterated that request on the morning of 23 June 2025. I allowed it to file submissions, with a view to considering its arguments that the Applicant's submissions of 20 June had raised new matters. I also asked the Respondent to indicate if the assertions in Mr Weule's statement filed 20 June 2025, which go to loss and mitigation, were contested.

• [6] The Respondent filed submissions on 24 June 2025. I took its submissions as contesting the conclusions to be drawn from Mr Weule's statement filed 20 June 2025, but not disputing the facts themselves. Accordingly, as the assertions of fact in Ms Langdon's and Mr Weule's statements filed 18 and 20 June were uncontested, I am able to rely upon them,[1] and no further hearing was necessary.

• [7] The Respondent has appealed my decision of 7 May 2025[2] ("the appeal"), and has made a stay application ("the stay application"). The Respondent's primary position was that no orders should be made until the appeal has been dealt with in its entirety. It made submissions in the alternative, which I have dealt with below as necessary.

• [8] Having considered the parties' submissions and the Applicant's proposed draft orders, I accept Mr Weule should be appointed to the position he held prior to the dismissal, Operator (Production) at the Caval Ridge Mine.

• [9] The Applicant proposes a reinstatement date of 2 July 2025. It submits this date would be consistent with the requirements of sections 577 and 578 of the Fair Work Act 2009 (Cth). It submits this would balance the needs of the parties, and give time for the stay application to be determined while also allowing the applicant's reinstatement to take effect without unnecessary delay if the stay application is not granted.

• [10] The Respondent submits that the reinstatement should not take effect until after its appeal of my decision of 7 May is decided. In the alternative it submits that the reinstatement should not take effect until two to three weeks after the order has been made, to give it an opportunity to make appropriate practical arrangements. It set out the necessary practical arrangements in Ms Langdon's statement filed 18 June 2025.

• [11] In the circumstances I consider the proper course to be for the reinstatement to take effect from a date after the hearing of the stay application. I will also allow time for arrangements to be made at the workplace. The order will take effect from 15 July 2025.

Continuity of employment and period of continuous service

• [12] The parties submit, and I accept, that the Applicant's continuity of service and period of continuous service should be maintained from 21 September 2024 until the date of his reinstatement.

• [13] The Respondent also submits that the order should be explicit that leave balances, paid on termination, are not to be recredited unless the Applicant repays the amounts paid.

• [14] Orders of this kind do not generally include explicit statements of that nature. To avoid any doubt the order should not be construed as requiring that the applicant be credited or recredited with any accrued leave that was paid out on termination.

• [15] The Applicant's evidence, of which the Respondent was on notice before the hearing, was that prior to his dismissal he was earning $157,144.00 a year plus a $15,000 bonus. He says he received five weeks' pay in lieu of notice. As at 19 December, when he made his first statement in these proceedings, he had not earned any other money since his dismissal.[3]

• [16] The Applicant's evidence, of which the Respondent was also on notice before the hearing, was also that:[4]

• he started looking for another job as soon as he was dismissed;

• he was hampered in his search by the Respondent's failure to provide him with an up-to-date signed skills list;

• Mr Scales of the Mining and Energy Union had asked for the skills list at the conclusion of the termination meeting of 20 September 2024;

• he received an unsigned skills list on or about 31 October 2024, and the signed skills list on 20 November 2024;

• after receiving the signed skills list he had been able to secure a new job with a start date of 8 January 2025.

• [17] Mr Everingham, a witness for the Respondent, also stated in his witness statement that Mr Scales had requested a skills list at the conclusion of the termination meeting, but did not explicitly say he wanted a signed skills list.[5] At the hearing, Mr Everingham said it's up to the business, but they generally give a copy of a skills list after termination. He agreed it would be standard to provide it after it is requested by someone. He said he had "dramas" with Mr Weule's list because of an incorrect number.[6]

• [18] Asked whether the skills list is necessary to find other jobs in the mining industry, he said he did not think it was "100% necessary" but agreed it was a "quick, good, go-to one." Asked if it was generally a requirement that the Site Senior Executive sign the skills list, Mr Everingham said "I did hear that it wasn't required," but that when he sent it through Mr Weule asked for it to be signed.[7] He said that it had taken longer than it should have to provide the skills list, and said he had apologised to the Applicant for that.[8] The Respondent submitted there was no obligation to provide a skills list.[9]

• [19] The Applicant said the salary for his new job was $64 per hour which was approximately $622 per week less than he had been earning when working for the Respondent. He said the engagement was on a casual basis and this rate was inclusive of a casual loading. He said he would not have the job security or receive the leave entitlements that he had when working for the Respondent on a permanent full-time basis.[10]

• [20] In his statement filed 20 June 2025 Mr Weule said the employment he had commenced on 8 January 2025, which was with Protech at the FoxLeigh Coal Mine, had continued until mid-April, when he had taken up work with FoxLeigh Services at the same mine. He has provided payslips for both. He also confirms his employment with the Respondent was subject to the BMA Caval Ridge Mine Enterprise Agreement 2023.[11]

• [21] Mr Everingham said the Applicant had received an overpayment, at termination, in the amount of $7086.53.[12] Mr Weule did not refute this in his statement in reply. The Respondent relied on this overpayment in its closing submissions, and the applicant's representative did not refute it in reply. The Respondent again relied upon it in its written submissions as to the order to be made, and Ms Langdon's statement said the overpayment had been made because of an administrative oversight.[13] In his submissions filed 20 June 2025 the Applicant did not deny receiving the overpayment but instead submitted it was a matter that could be pursued through a separate claim.

• [22] The Respondent submits the Applicant has not proved he has sustained loss, that his actual earnings since 20 September 2024 are unknown, and a payment could not be made to the Applicant in circumstances when the quantum of it cannot be determined. The Applicant submits that he has established that he has suffered loss, and that the quantum can be determined.

• [23] The parties are in dispute as to the extent to which the applicant has established that he mitigated his loss. The Applicant submits he has significantly mitigated his loss. The Respondent submits that the Applicant has not established the extent to which he has sought to mitigate his loss. It points out in its further submissions of 24 June 2025 that there is a lack of documentary evidence in relation to Mr Weule's job search and the necessity or otherwise of a signed skills list.

• [24] The Respondent submits that an amount paid in lieu of notice, as well as the overpayment, should be offset if any order for lost pay is made.

• [25] The parties are in dispute as to whether the Applicant's conduct should be taken into account to discount the amount to be paid. The Applicant relies on the absence of a finding of misconduct. The Respondent submits the Applicant's admitted and accepted conduct should be taken into account.

• [26] The Applicant proposes a general order requiring a payment for lost remuneration, and allowing for the parties to refer a dispute in that regard to the Commission for final determination.

• [27] The Respondent submits that the orders sought by the Applicant are not in terms that are sufficiently clear or certain such that they could be made by the Commission or, if they were made, complied with by the Respondent. It submits that it would not be appropriate for the Commission to make an order with a dispute resolution mechanism in the event the parties are unable to reach agreement as to the quantum of lost pay, and also submits that such an order could not be made under section 390 or 391 of the Fair Work Act.

• [28] The Applicant maintains its position that an order can be made in general terms but provides calculations to assist in the event the Commission considers an order for a specific amount should be made.

• [29] The Applicant submitted the payment should fall due by 9 July. The Respondent submitted no payment should be made and did not specify a date in the alternative (save for its primary submission that no orders should take effect until after the appeal has been determined).

• [30] I have considered both parties' submissions.

• [31] I consider that section 391 of the Fair Work Act provides for discretion in setting the amount to be ordered for lost pay, inclusive of some mandatory considerations set out in subsection 391(4), that are not exhaustive considerations having regard to subsection 391(3).

• [32] I consider it would be preferable for the order to specify the amount payable, to avoid giving rise to uncertainty for those responsible for executing it.

• [33] I accept that the Applicant had been earning $157,144.00 a year plus a $15,000 bonus prior to his dismissal, which took effect on 20 September 2024.

• [34] I accept that the Applicant received five weeks' pay in lieu of notice in the amount of $15,110.08.

• [35] I accept that the Applicant received an inadvertent overpayment of $7086.53. I consider this can be taken into account in determining the quantum of the order for lost pay.

• [36] I accept that between 8 January 2025 and 20 June 2025 the Applicant's earnings were $75,565.59.

• [37] Mr Weule's evidence as to his mitigation efforts was before the Commission at the hearing, and the Respondent had been on notice of it via the witness statement filed in advance. The Respondent could have cross-examined Mr Weule in relation to his mitigation efforts. Nonetheless I accept that the evidence of the Applicant's attempts at mitigation between the termination date and his successful application for the new role is limited. As a matter of objective reality, the fact that the Applicant obtained that new role by the time he filed his witness statement suggests that he made at least some attempt at mitigation in the period between mid-September and mid-December.

• [38] In light of Mr Everingham's evidence I also accept that the Respondent was slow to provide a skills list to the Applicant.

• [39] In the circumstances I can apply a discount in recognition of the limited evidence of mitigation, while moderating the extent of the discount in light of the Respondent's failure to take the reasonable step of providing a skills list in a timely manner.

• [40] I have previously found that the Applicant's remark regarding Mr Torcello's dozer was passive aggressive. Though I do not consider that justified or excused Mr Torcello's conduct, or obviated the Applicant's right of self-defence from physical attack, I can take this remark into account.

• [41] The Applicant argues that having regard to Mr Weule's pay rate prior to dismissal, the amount he has earned since, and the payment in lieu of notice, the quantum of the order should be $43,734.37. This is slightly more than three months' pay at the rate set out above.

• [42] Deducting the overpayment from the Applicant's proposed quantum leaves $36,647.84. Taking into account all of those matters, including the matters weighing in favour of a discount, I will order payment in the amount of $29,318.27 for lost pay, payable within 21 days of the date of the order.

• [43] I have determined that Mr Weule is to be appointed to the position he held prior to the dismissal, which was Operator (Production) at Caval Ridge Mine, and that the reinstatement is to take effect from 15 July 2025.

• [44] I have decided to make an order for maintaining continuity of service and for the period following the dismissal until reinstatement to count towards continuous service. I have decided to make an order for lost pay in the amount of $29,318.27. An Order giving effect to this Decision will issue with this Decision.

A Nash of the Mining and Energy Union for the Applicant.

M Brooks of Counsel, instructed by Lander & Rogers, for the Respondent.

Applicant: 12 June 2025 (settled by the Mining and Energy Union)

Employer: 18 June 2025 (settled by H Blattman KC and M Brooks of Counsel)

Applicant's reply: 20 June 2025 (settled by the Mining and Energy Union)

Employer: 24 June 2025 (settled by H Blattman KC and M Brooks of Counsel)

[1] R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228 at 243 per Barwick CJ; Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.

[2] David Weule v Central Queensland Services Pty Ltd [2025] FWC 1219.

[3] Exhibit 1, [48]-[49] and annexure DW6.

[11] Statement of Mr David Weule filed 20 June 2025, [3]-[5] and annexures DW1, DW2, and DW3.

[13] Statement of Ms Langdon filed 18 June 2025, [14]-[16].

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