DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Christopher Sariman
v
BMD Constructions Pty Ltd
(U2015/16721)

COMMISSIONER HUNT

BRISBANE, 25 AUGUST 2016

Application for unfair dismissal remedy – jurisdictional objection – whether employee is a person protected from unfair dismissal – whether employee covered by Professional Employees Award 2010 – high income threshold – car allowance and fuel card – employee not protected from unfair dismissal – jurisdictional objection upheld application dismissed.

Introduction

[1] Mr Christopher Sariman applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by BMD Constructions Pty Ltd (BMD).

[2] Mr Sariman commenced employment with BMD in May 2012 and was dismissed on 4 December 2015. BMD is a national civil construction contractor that constructs roads and bridges and undertakes urban development and subdivision work. Mr Sariman’s title was Senior Project Engineer.

[3] Following the cessation of the employment, Mr Sariman made application to the Fair Work Commission (the Commission), alleging that his dismissal was harsh, unjust or unreasonable.

[4] BMD objected to the application proceeding on the basis that Mr Sariman is not a person protected from unfair dismissal.

[5] Directions were issued for the filing of evidence and submissions to determine the jurisdictional objection. BMD is represented by Mr Greg Power, a paid agent of Drayton’s Workplace Consulting Pty Ltd.

[6] Leave was granted for Mr Power to appear pursuant to s.596(2)(a) of the
Act. I determined that Mr Power’s appearance would enable the matter to be dealt with more efficiently, taking into account the complexity of the jurisdictional issue.

[7] The matter was listed for jurisdictional hearing in Brisbane, with a video-link to Townsville, on 5 July 2016.

A person protected from unfair dismissal

[8] In relation to when a person is protected from unfair dismissal, s.382 provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[9] It is not in dispute that Mr Sariman has completed at least the minimum period of employment with BMD. The minimum period is 6 months, given that BMD is not a small business.

[10] There is no enterprise agreement applicable to the work that was performed by Mr Sariman at BMD.

[11] BMD asserts two jurisdictional objections. The first is that Mr Sariman is not covered by a modern award. The…

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 Christopher Sariman v BMD Constructions Pty Ltd

Details

AGLC: Christopher Sariman v BMD Constructions Pty Ltd [2016] FWC 5419
Case: [2016] FWC 5419
Decision Date: 25 AUGUST 2016

CaseChat Overview and Summary

In the case of Christopher Sariman v BMD Constructions Pty Ltd, the applicant, Mr Sariman, sought an unfair dismissal remedy against his employer, BMD Constructions. The dispute centred around the termination of Mr Sariman’s employment and the applicability of unfair dismissal provisions under the Fair Work Act 2009. The matter was heard and determined by the Federal Circuit Court of Australia.

The primary legal issues the court had to address were whether Mr Sariman was a person protected from unfair dismissal and whether he was covered by the Professional Employees Award 2010. A significant aspect of the dispute involved the high income threshold and the classification of Mr Sariman’s car allowance and fuel card. These factors were crucial in determining whether he qualified for protection under the Act. The court examined whether these elements should be considered in calculating Mr Sariman’s income, thereby impacting his eligibility for the unfair dismissal remedy.

The Federal Circuit Court ruled that Mr Sariman did not meet the criteria for protection from unfair dismissal. The court determined that the high income threshold and the inclusion of the car allowance and fuel card in his remuneration package meant that he was not covered by the Professional Employees Award 2010. Consequently, the jurisdictional objection was upheld, and the application for an unfair dismissal remedy was dismissed. This decision was based on the court's interpretation of the relevant award and the specific terms of Mr Sariman’s employment contract.

Orders