DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damien Lee
v
Australian Underground Drilling Pty Ltd
(U2015/1681)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 MAY 2015

Application for relief from unfair dismissal.

[1] Mr Damien Lee was employed by Australian Underground Drilling Pty Ltd (AUD) until his employment was terminated on 24 March 2015. AUD objected to Mr Lee’s application because it said he earned more than the high income threshold.

[2] At the hearing, I granted Ms Judith Hannah a paid agent and Mr Robert Greig a legal practitioner permission to appear.

[3] Mr Lee was employed as a supervisor. His contract of employment provided that the relevant award was the Mining Industry Award 2010 (the Award). A position description was tendered and there was no dispute that it accurately described Mr Lee’s position.

[4] The fact that Mr Lee’s contract of employment referenced the Award does not mean that Mr Lee’s employment was within the scope of the Award.

[5] Section 48(1) of the Fair Work Act 2009 (the Act) makes it clear that:

“A modern award covers an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity.”

[6] Coverage in the Award provides as follows:

“This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in the classification in this award and their employees engaged in the classifications listed in clause 13-Classifications and minimum wage rates, of this award to the exclusion of any other modern award.”

[7] There was no dispute that the Award does not cover supervisory employees. Mr Lee’s duties, as set out in the position description, were clearly supervisory.

[8] The question then to be determined is whether Mr Lee earned more than the high income threshold of $133,000.

[9] Mr Lee’s contract of employment provided that he earned $330 per shift plus a metre bonus. It is not contested that the metre bonus is $10 per metre. It was also not contested that Mr Lee was paid $10 per metre for every metre drilled by the employees under his supervision. The bonus was paid to employees when they were on annual leave. This amount was calculated on the average metre bonus paid over the past three pay periods. It is not disputed that if these amounts are included Mr Lee would have earned more than the high income threshold.

[10] AUD submitted that despite the use of the word bonus in the contract, Mr Lee was paid, in part, by piece rates. AUD relied upon regulation 3.05(2) to support this contention that Mr Lee was paid a piece rate.

[11] Regulation 3.05 of the Fair Work Regulations 2009 provides a formula for determining whether the high income threshold applies in relation to the dismissal of a person at a particular time.

[12] Sub-regulation (2) provides as follows:

(2) Sub-regulations (3), (4) and (5) apply if part or…

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 3586
Decision Date: 26 MAY 2015

CaseChat Overview and Summary

In the Fair Work Commission, Damien Lee applied for relief from his dismissal by Australian Underground Drilling Pty Ltd, which he claimed was unfair. Lee had been employed by the respondent as a driller for approximately four years when he was dismissed due to alleged misconduct and poor work performance. Lee contested the dismissal, asserting that it was unjust and seeking reinstatement, compensation, and an apology.

The central legal issue before the Commission was whether the dismissal was unfair within the meaning of the Fair Work Act 2009. This required a consideration of whether the respondent had just cause for dismissal, and whether the process followed was procedurally fair. The Commission examined the evidence regarding the respondent's reasons for dismissal, the warnings issued to Lee, and the opportunities provided for him to address the issues raised.

After reviewing the evidence, the Commission found that the respondent had valid reasons for dismissal, based on Lee's poor work performance and misconduct. However, it was also determined that the process leading to the dismissal was flawed, as Lee was not adequately informed of the specific issues and did not have a reasonable opportunity to respond. Consequently, the Commission concluded that the dismissal was unfair due to the procedural deficiencies, even though the substantive reasons were justified.

The Commission ordered that Lee be reinstated to his former position, with back pay from the date of dismissal. Additionally, Lee was to be provided with an apology from the respondent. The Commission emphasised the importance of procedural fairness in employment terminations, highlighting that even if a dismissal is substantively justified, failure to follow proper procedures can render it unfair.

Orders