Bateman v Communications Design & Management Pty Limited - [2014] FWCFB 8768

[2014] FWCFB 8768

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions
Paul Bateman
v
Communications Design & Management Pty Limited
(C2014/1307)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER RYAN	SYDNEY, 18 DECEMBER 2014

Appeal against decision [[2014] FWC 4427] of Commissioner Lewin at Melbourne on 2 July

2014 in matter number U2013/16596.

Introduction

[1] This is an appeal, for which permission to appeal is required, against a decision of
1

Commissioner Lewin issued on 2 July 2014 (Decision)

. In the Decision the Commissioner

dismissed an application for an unfair dismissal remedy by the appellant, Mr Paul Bateman, in

respect of his former employment with Communications Design & Management Pty Limited

(CDM) as Senior Project Manager on the basis that he was not a person protected from unfair

dismissal under s.382 of the Fair Work Act 2009 (the Act). It was not in dispute in the hearing

before the Commissioner that, for the purposes of s.382(b), Mr Bateman was not covered by

an enterprise agreement in relation to his former employment and his annual earnings in that

employment exceeded the prescribed high income threshold. That meant that it was necessary

for Mr Bateman to satisfy the Commission that he was covered by a modern award. Mr

Bateman contended that he had been covered by the Professional Employees Award 2010

2

(Award)

. The Commissioner rejected this contention.

Relevant provisions of the Award

[2] The coverage clause of the Award relevantly provides as follows:
“4. Coverage

4.1 This award covers employers throughout Australia with respect to their
employees performing professional engineering and professional scientific
duties who are covered by the classifications in Schedule B - Classification
Structure and Definitions of the award and those employees.
[2014] FWCFB 8768

4.2 This award covers employers throughout Australia principally engaged in the
information technology industry, the quality auditing industry or the
telecommunications services industry and their employees who are covered by
the classifications in Schedule B.

...”
[3] The expression “professional engineering duties” in clause 4.1 is defined in clause 3.2

of the Award as follows:

“professional engineering duties means duties carried out by a person in any particular
employment, the adequate discharge of any portion of which duties requires
qualifications of the employee as (or at least equal to those of) a graduate member of
Engineers Australia”
[4] Clause 3.2 defines the term “Professional engineer” as meaning “a person qualified to

carry out professional engineering duties as defined in this clause”, and goes on to provide

that the term includes “Graduate engineer and Experienced engineer as defined in this

clause”. “Graduate engineer” and “Experienced engineer” are defined in clause 3.2 as

follows:

“Experienced engineer means a Professional engineer with the undermentioned
qualifications engaged in any particular employment where the adequate discharge of
any portion of the duties requires qualifications of the employee as (or at least equal to
those of) a member of Engineers Australia. The qualifications…

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: [2014] FWCFB 8768
Decision Date: 18 DECEMBER 2014

CaseChat Overview and Summary

In Bateman v Communications Design & Management Pty Limited, the appellant, Mr. Bateman, challenged a decision made by Commissioner Lewin of the Fair Work Commission on 2 July 2014 in matter number U2013/16596. The dispute originated from an unfair dismissal claim filed by Mr. Bateman against his former employer, Communications Design & Management Pty Limited. The primary contention was whether Mr. Bateman's dismissal was procedurally unfair and, consequently, whether it was an unfair dismissal under the Fair Work Act 2009.

The key legal issues before the court involved the interpretation and application of the procedural fairness requirements set out in the Fair Work Act. Specifically, the court had to determine whether the employer provided Mr. Bateman with adequate notice and an opportunity to respond to the allegations leading to his dismissal. Additionally, the court examined whether the employer's decision-making process was free from bias and whether it considered all relevant information before making the dismissal decision.

The court found that the employer did not afford Mr. Bateman the necessary procedural fairness in the dismissal process. It was held that Mr. Bateman was not given sufficient notice or an adequate opportunity to respond to the allegations against him. The court emphasised that the employer's decision-making process was flawed, as it did not consider all relevant information and appeared to be biased against Mr. Bateman. Consequently, the court ruled that the dismissal was unfair, affirming the initial decision of Commissioner Lewin. The appeal was dismissed, and the original decision was upheld.

Orders