William Pepper V Hanson Construction Materials Pty Ltd [2008] NSWIRComm 1006

William Pepper V Hanson Construction Materials Pty Ltd [2008] NSWIRComm 1006

The Commission found that William Pepper’s dismissal was harsh and unfair because he was capable, on medical evidence and prior performance, of safely executing the duties required of a Control Room employee in the Crusher Plant. Reinstatement was impracticable, but a relevant position was available for re-employment, thus re-employment with continuity and lost remuneration was ordered pursuant to s89 of the Act.

Parties
Applicant: William Pepper; Respondent: Hanson Construction Materials Pty Ltd
Jurisdiction
Australia
Judgment Date
19 March 2008
Procedural Posture
Unfair Dismissal Application / Final Judgment
Outcome
Application granted in part; re-employment ordered; lost remuneration and continuity of service granted.
Legal Topics
Unfair Dismissal, Reinstatement or Re Employment, Medical Fitness and Workplace Safety, Continuity of Service, Lost Remuneration
Industrial Relations Employment Law Unfair Dismissal Reinstatement or Re Employment Medical Fitness and Workplace Safety Continuity of Service Lost Remuneration

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Parties

William Pepper

Applicant

Hanson Construction Materials Pty Ltd

Respondent

Procedural Posture

Unfair Dismissal Application / Final Judgment

Legal Issues

  1. 1 Was the dismissal of William Pepper unfair, harsh or unreasonable?
  2. 2 Is re-employment to another position in the quarry appropriate rather than reinstatement to former position?
  3. 3 Did the Respondent reasonably accommodate the Applicant's medical condition (Meniere's Disease)?

Ratio Decidendi

The Commission found that William Pepper’s dismissal was harsh and unfair because he was capable, on medical evidence and prior performance, of safely executing the duties required of a Control Room employee in the Crusher Plant. Reinstatement was impracticable, but a relevant position was available for re-employment, thus re-employment with continuity and lost remuneration was ordered pursuant to s89 of the Act.

Court Disposition

Application granted in part; re-employment ordered; lost remuneration and continuity of service granted.

Orders

  • William Pepper is to be re-employed by Hanson Construction Materials Pty Ltd into the Control Room position located within the Crusher Plant.
  • Employment is to be taken not to have been broken by dismissal.