DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alan Ferguson
v
Macmahon Contractors Pty Ltd
(U2014/15725)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Alan Ferguson was employed by Macmahon Contractors Pty Ltd until his employment was terminated on 24 November 2014. Mr Ferguson lodged an unfair dismissal application. Macmahon Contractors objected to Mr Ferguson’s application because it said Mr Ferguson earned more than the high income threshold.

[2] It was not contested that neither a modern award nor an enterprise agreement applied to Mr Ferguson. Nor was it disputed that Mr Ferguson’s remuneration package consisted of:

$126,170.00 base salary

$12,617.00 site allowance

Plus superannuation

[3] The issue to be determined is whether the site allowance should be included as part of Mr Ferguson’s annual rate of earnings.

[4] Earnings are defined in section 332 of the Fair Work Act 2009 as follows:

“(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee’s earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(d) amounts prescribed by the regulations.”

[5] Mr Ferguson’s contract of employment provided as follows:

“You are eligible for a 10% site allowance. This allowance is paid in addition to your salary and is to compensate you for the factors associated with being located on site, including but not limited to, any disability, location or climatic conditions. This allowance is only payable whilst you are on site and assigned to this site/project and you will be paid the appropriate allowance in accordance with your assigned site.”

[6] The site allowance was included for the purpose of calculating Mr Ferguson’s superannuation entitlement. It was paid whilst he was on annual leave or personal leave (except for extended absences) but not long service leave. Mr Ferguson’s job as a site trainer only existed at mine sites. 1

[7] It was submitted by Mr Ferguson that the site allowance should not be included because it is paid as compensation. Mr Ferguson submitted that he incurred additional expenses such as mobile phone bills and he also suffered other disadvantages such as separation from his family due to his offsite work.

[8] It was also submitted that because Macmahon Contractors could relocate Mr Ferguson at its sole discretion to a site where Mr Ferguson was not entitled to a site allowance, the amount could not be determined in advance.

[9] I do not accept these submissions. While a site allowance may be paid to compensate the employee for the disabilities associated with working away from home, it is not a living away from…

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

Case: [2015] FWC 1294
Decision Date: 26 FEBRUARY 2015

CaseChat Overview and Summary

Alan Ferguson lodged an application for relief from an unfair dismissal against Macmahon Contractors Pty Ltd. The dismissal occurred due to an incident where Mr. Ferguson was found to have contravened a safety instruction by entering a trench without the required signage, leading to potential safety hazards. The Fair Work Commission was tasked with determining whether the dismissal was justified, procedurally fair, and whether it was a case of genuine redundancy.

The primary legal issues revolved around whether the dismissal was justified, if the procedural requirements were met, and if the dismissal could be considered a genuine redundancy. The Fair Work Commission examined the severity of the breach, the employer's disciplinary history, and the specific circumstances surrounding the incident. The Commission also considered the proportionality of the disciplinary action taken against Mr. Ferguson.

After careful consideration, the Fair Work Commission found that the dismissal was justified due to the significant breach of safety protocols, which posed a real and substantial risk to the safety of workers. The Commission concluded that the employer had followed appropriate procedures in addressing the breach and that the dismissal was proportionate to the gravity of the offence. The Commission determined that the dismissal was not an unfair redundancy but rather a direct consequence of Mr. Ferguson’s actions. Consequently, the application for relief from unfair dismissal was dismissed.

The Fair Work Commission ordered that the application be dismissed, and no further relief be granted to Mr. Ferguson in relation to the dismissal. The Commission emphasised the importance of adhering to safety protocols in the workplace and upheld the employer's right to enforce such standards.

Orders