Adam Jambanis v Warrikal Engineering Pty Ltd - [2022] FWC 1907

[2022] FWC 1907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adam Jambanis
v

Warrikal Engineering Pty Ltd

(U2022/3567)

COMMISSIONER SCHNEIDER

PERTH, 25 JULY 2022

Application for an unfair dismissal remedy

Mr Adam Jambanis (Mr Jambanis or the Applicant) applied under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy in relation to the termination of his employment with Warrikal Engineering Pty Ltd (the Respondent).

The Respondent objects to the application on the grounds that the Applicant is not protected from unfair dismissal because he earns more than the high income threshold.

For the reasons that follow, I find that the Applicant’s annual rate of earnings was less than the high income threshold and that he is protected from unfair dismissal. The parties will be issued with directions for a hearing on the merits of the matter in due course.

Background

The Applicant commenced employment with the Respondent in January 2020.

The Applicant was originally engaged on a casual basis and later as a permanent HSE Superintendent based in the Respondent’s Perth office.

The Applicant was offered a revised contract (the Contract) on 1 July 2021, as a HSE Superintendent, which was signed by the Applicant on 2 July 2021. Under the Contract, the Applicant would be required to work in the Perth office and on various Fly-In Fly-Out (FIFO) roster rotations at client sites in the mining industry. The Contract came into effect on 5 July 2021.

The Contract stipulated the Applicant would receive a total salary package of $170,497.20. The Contract specifies that $154,997.40 of that total is the annual remuneration and that $15,499.74, the remaining sum, is the compulsory superannuation contribution.

Separate from the salary package, the Contract provides for a $25 phone allowance paid fortnightly.

The Contract contained the below terms and conditions which were agreed between the parties in July 2021.

· Clause 4.8 states “the total hours per annum stipulated in the schedule have been calculated on a 9 hour fly in day, 12.5 hour workings day and a 9 hour fly out day”.

· Clause 4.9 states “a surplus of hours needs to be taken as time off and is not to be converted to cash entitlements”.

· Clause 25 states – Roster – “the roster can be changed to suit the client’s needs and roster cycles by advising the employee verbally of the change and providing at least 48 hours’ notice of the change. Should the employee not agree to the roster change they should notify the employer”. This clause also notes that the employee (the Applicant) would be required to work 12-hour days.

The Applicant was not covered by an Enterprise Agreement or a Modern Award.

The Applicant’s employment was terminated on 2 March 2022.

A hearing on the objection was held on 27 June 2022 in Perth.

Relevant Legislation

“382 When a person is protected from unfair dismissal

A person is protected from unfair…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adam Jambanis v Warrikal Engineering Pty Ltd

Details

AGLC: Adam Jambanis v Warrikal Engineering Pty Ltd [2022] FWC 1907
Case: [2022] FWC 1907
Decision Date: 25 JULY 2022

CaseChat Overview and Summary

Adam Jambanis brought an application under section 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy against Warrikal Engineering Pty Ltd, the Respondent. The Respondent argued that Mr Jambanis was not protected from unfair dismissal because he earned more than the high income threshold. The Applicant commenced employment with the Respondent in January 2020 and was originally engaged on a casual basis and later as a permanent HSE Superintendent based in the Respondent’s Perth office. The Applicant was offered a revised contract on 1 July 2021, as a HSE Superintendent, which was signed by the Applicant on 2 July 2021. The Applicant’s employment was terminated on 2 March 2022. The Applicant submits that his payslips, which were entered into evidence, confirm that the “overtime” paid per fortnight varied depending on the Respondent’s client’s operational requirements. The Applicant therefore submits that pursuant to section 332(2)(a) of the Act, which specifies that an employee’s earnings do not include “payments the amount of which cannot be determined in advance”, the “overtime” and “site allowance” payments should be excluded from the calculation. The Applicant submitted that, whilst there was an agreement as to how his TOIL and overtime payments would be managed, there was never an amount of TOIL or over time guaranteed in his contract of employment. Therefore, the overtime could not be determined in advance and should not be included in the calculation. The Commission found that the Applicant’s TOIL surplus payments could not be classified as guaranteed overtime or earnings. As a result, the Applicant earned less than the high income threshold, being $158,500 at the time of his dismissal, and he is therefore a person protected from unfair dismissal under the Act. The Respondent’s jurisdictional objection is dismissed, and the matter will now progress to a hearing on the merits of the application.

Orders