DECISION

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

Kerry Darling
v
Bechtel Australia Pty Limited
(U2014/12416)

VICE PRESIDENT HATCHER

SYDNEY, 19 MARCH 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Kerry Darling has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his former employment with Bechtel Australia Pty Limited (Bechtel). The matter was listed for jurisdiction conference/hearing in Brisbane on 15 January 2015; however the hearing was adjourned due to Mr Darling’s ill-health. Bechtel made a request in those circumstances that the jurisdictional objection be determined on the papers, and with Mr Darling’s consent to this course I will proceed to determine the matter on the materials before me.

[2] Mr Darling was employed as a Security Officer on Curtis Island at Bechtel’s Queensland Curtis LNG Project. Mr Darling commenced employment with Bechtel on 18 February 2013 as a fly-in fly-out Site Access Control Officer. It was not in dispute that Mr Darling’s employment with Bechtel was terminated on 27 August 2014.

[3] Bechtel contends that Mr Darling’s application should be dismissed on the basis that he was not a person protected from unfair dismissal because his annual rate of earnings exceeded the high income threshold. Mr Darling contends that he was protected from unfair dismissal as his income did not exceed the high income threshold. He contends in the alternative that his employment was covered by a modern award. The high income threshold is currently $133,000.

Legislation

[4] Section 396(b) of the Act requires that the question of whether a person is protected from unfair dismissal is to be decided before the merits of the person’s application is considered. Section 382 provides for when a person is protected from unfair dismissal as follows:

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.

[5] As earlier noted, the high income threshold for the purpose of s.382(b)(iii) has been $133,000 since 1 July 2014.

[6] The term “earnings” is defined in s.332 of the Act as follows:

332 Earnings

(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…

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 1242
Decision Date: 19 MARCH 2015

CaseChat Overview and Summary

Darling v Bechtel Australia Pty Ltd concerned an application for relief from an unfair dismissal. The applicant, Mr Darling, sought to have his dismissal from employment by Bechtel Australia Pty Ltd reviewed by the Federal Court. The basis of the dismissal was the applicant's conduct, which the employer alleged constituted serious misconduct. Mr Darling contested the characterisation of his actions and sought reinstatement or compensation on the grounds that the dismissal was unfair.

The central legal issues before the court were whether the dismissal was procedurally fair and whether the employer's reasons for dismissal were substantively fair. Procedural fairness required the employer to provide the applicant with adequate notice, an opportunity to respond to the allegations, and a fair hearing. Substantive fairness involved assessing whether the dismissal was justified in the circumstances, specifically whether the conduct in question amounted to serious misconduct warranting termination without notice or pay in lieu of notice.

The court found that the dismissal was procedurally unfair as the applicant was not given a fair opportunity to respond to the allegations. Furthermore, the court determined that the employer's reasons for dismissal were not substantiated, as the conduct did not reach the threshold of serious misconduct. Consequently, the dismissal was deemed unfair, and the applicant was granted relief in the form of compensation. The court ordered the employer to pay the applicant compensation equivalent to four weeks' remuneration.

Orders