FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Spase Suleski
v
Rio Tinto Iron Ore Dampier
(U2014/8726)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 11 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Spase Suleski alleged that the termination of his employment at Rio Tinto Iron Ore Dampier was unfair.

[2] Pilbara Iron Company (Services) Pty Ltd trading as Rio Tinto Iron Ore filed an employer response form. It objected to Mr Suleski’s application on the basis that he earned more than the high income threshold.

[3] On 9 October 2014, the Fair Work Commission sent Mr Suleski a letter recording that during the conciliation, Mr Suleski indicated that he would discontinue the application.

[4] On 29 October 2014, Mr Suleski advised that he wished to proceed with his application. Mr Suleski was advised on the same date that his application could not be reactivated. He replied advising that he had not signed the notice of discontinuance and he believed that he was misled during the conference and wanted to seek independent legal advice. Further correspondence ensued and on 30 December 2014 Rio Tinto advised that it considered the matter had been discontinued. It submitted that Mr Suleski had independent legal advice, including during the conciliation conference, and it opposed the matter being reinstated.

[5] The parties were advised that I would hear from them on whether the matter had been discontinued.

[6] At the hearing, Rio Tinto did not press its objection to Mr Suleski’s matter proceeding. It did however press its high income threshold objection.

[7] If Mr Suleski’s employment was covered by a modern award, it was not disputed that the Mining Industry Award 2010 1 was the relevant modern award.

[8] Mr Suleski was employed as a Cranage & Transport Supervisor. While Mr Suleski stated that he had not seen the relevant job description, he accepted that it accurately described his responsibilities.

[9] Rio Tinto produced pay slips for Mr Suleski which showed a base salary of $8,075.42, $2,099.17 work pattern allowance and $2,235.50 site allowance per month which totals $148,921.08 per year. It was put that the work pattern allowance had increased slightly in March 2014 and Mr Suleski’s base salary plus work pattern and site allowance totalled $149,121.00 This amount exceeds the high income threshold.

[10] In those circumstances, the questions to be answered are:

1. Was Mr Suleski’s employment covered by the Mining Industry Award 2010?

[11] The Mining Industry Award 2010 provides at clause 4 for the coverage of the award as follows:

4.1 This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a 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.

[12] There is no dispute that Rio Tinto is engaged in the mining industry.

[13] Clause 13 provides for the…

CaseChat Overview and Summary

Emma Louise Woolcock brought an application for relief from unfair dismissal against her former employer, Eyecare and Vision Services T/A Eyes and Vision, before the Fair Work Commission. Woolcock was employed as an optometrist and was dismissed following an incident where she allegedly provided incorrect information to a patient, which led to a complaint and subsequent investigation by the employer. The employer claimed that Woolcock's conduct breached the organisation's policies and amounted to serious misconduct, justifying her termination. Woolcock, on the other hand, contested the fairness of her dismissal, arguing that the employer's decision was not based on valid reasons and that she had been treated unfairly.

The primary legal issue the Fair Work Commission had to address was whether Woolcock's dismissal was unfair within the meaning of the Fair Work Act. This involved determining whether the employer had just cause for the dismissal, whether the employer followed a fair process, and whether the dismissal was proportionate to the nature of the alleged misconduct. Additionally, the Commission had to consider whether Woolcock's right to procedural fairness was upheld during the investigation and dismissal process.

The Fair Work Commission found that the employer had valid reasons to believe that Woolcock's conduct warranted dismissal due to the seriousness of the error made. However, the Commission also noted that the employer failed to provide Woolcock with an adequate opportunity to respond to the allegations and did not follow a fair process in reaching its decision. The employer's decision to dismiss Woolcock was deemed disproportionate to the nature of the misconduct, and the Commission concluded that Woolcock's right to procedural fairness had not been adequately observed. As a result, the Fair Work Commission ruled that Woolcock's dismissal was unfair.

The Fair Work Commission ordered that Woolcock's dismissal be set aside and that she be reinstated to her position as an optometrist with Eyecare and Vision Services. Furthermore, the employer was directed to compensate Woolcock for the loss of earnings from the date of her dismissal until her reinstatement. The employer was also required to provide Woolcock with an apology and to implement measures to ensure compliance with procedural fairness in future disciplinary processes.

Emma Louise Woolcock v Eyecare and Vision Services T/A Eyes and Vision

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established