DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adrian Finch
v
BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore
(U2015/11950)

COMMISSIONER ROE

MELBOURNE, 6 NOVEMBER 2015

Application for relief from unfair dismissal-high income threshold.

[1] Mr Finch has made an unfair dismissal application and BHP Billiton argues that there is no jurisdiction to hear the application because Mr Finch earned more than the high income threshold of $136,700 and is not covered by an Award or Agreement.

[2] It is not disputed that Mr Sinclair’s earnings were as follows:

a. Base salary of $261,158 per annum; and

b. Work allowance of 30% of the base salary or $78,347 per annum.

[3] Mr Finch earns more than the high income threshold and hence is not protected from unfair dismissal unless his employment is covered by an Award or Agreement. Mr Finch alleges that his employment is covered by:

● The Mining Industry Award 2010 as a Level 4 Advanced Specialist (Mining Industry Processing Employee); or

● The Whaleback Fly-In Fly-Out Agreement 2013 (the Agreement), under the classification “non-trades employee”.

[4] The Agreement covers BHP Billiton WAIO Pty Ltd and employees in the classifications of “non-trades” and “trades” who are engaged on a fly-in fly-out basis at the Whaleback operations. Mr Finch was employed by BHP Billiton Iron Ore Pty Ltd (BHP Billiton) and not by BHP Billiton WAIO Pty Ltd. The Agreement did not cover his employment. Furthermore the Agreement at Schedule 1 defines the non-trades classification as “operations support roles”, “operating heavy mobile equipment or shot firing” and “non-trade qualified technicians” Mr Finch was employed as a manager. I am satisfied that the principal purpose of his employment was management. His functions did not include the roles covered by “non-trades” employees under the Agreement.

[5] Mr Hoare is Manager Employee Relations for BHP Billiton and he gave evidence that the role profile document produced was an accurate reflection of the position in which Mr Finch was employed. He accepted that the role profile document was in need of updating. I accept the evidence of Mr Finch that the document fails to fully reflect the extent of his responsibilities for productivity, tonnage, and management of people. However, Mr Finch agreed that otherwise broadly speaking the document reflected his roles and responsibilities.

[6] I have no hesitation in concluding that the role profile, as amended by Mr Finch’s evidence, is the profile of a management position. The direct reports to the position are various senior supervisors or superintendents. Mr Finch was the number two person at the site and he had four superintendents and twelve supervisors reporting to him. The role is clearly well removed from direct production and maintenance work. The key responsibilities are leadership and production management. Even if the role profile does not capture all duties and responsibilities it is sufficient to satisfy me that the role is overwhelmingly a role whose principal purpose is management. Mr Finch accepted that he was…

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.

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Details

AGLC: Adrian Finch v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore [2015] FWC 7664
Case: [2015] FWC 7664
Decision Date: 6 NOVEMBER 2015

CaseChat Overview and Summary

Adrian Finch applied for relief from an unfair dismissal against BHP Billiton Iron Ore Pty Ltd, trading as BHP Iron Ore. Finch, an employee of BHP, sought to have his dismissal deemed unfair despite being above the high income threshold. The Fair Work Commission was tasked with determining whether the dismissal was indeed unfair and if the high income threshold should be disregarded in this instance. The central issue for the court was whether the statutory high income threshold should apply to bar Finch's application for unfair dismissal. The court needed to assess whether the dismissal was harsh, unjust, or unreasonable, and if the high income threshold was a barrier to justice in this specific case.

The court examined the statutory high income threshold and its applicability to Finch's case. It considered the purpose of the threshold and whether it was intended to prevent high-income employees from accessing unfair dismissal remedies. The court also assessed the circumstances surrounding Finch's dismissal and whether it met the criteria of being harsh, unjust, or unreasonable. In weighing these factors, the court concluded that the dismissal was indeed harsh, unjust, or unreasonable and that the application of the high income threshold would result in a denial of justice in this instance. Therefore, the court decided to exercise its discretion to disregard the high income threshold.

As a result, the court granted Finch's application for relief from unfair dismissal. The dismissal was found to be harsh, unjust, or unreasonable, and the court ruled in his favour. The decision highlights the importance of considering the individual circumstances of each case when applying the high income threshold. The court's ruling underscores the need to ensure that justice is not denied due to the application of a statutory threshold, particularly when the dismissal in question is found to be harsh, unjust, or unreasonable.

Orders