Harris v SX Projects Pty Ltd - [2014] FWC 3047

[2014] FWC 3047

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Malcolm Harris
v
SX Projects Pty Ltd
(U2013/17556)
DEPUTY PRESIDENT BOOTH	SYDNEY, 9 MAY 2014

Termination of employment - application for unfair dismissal remedy - jurisdiction - high income threshold - minimum employment period.

[1] Mr Malcolm Harris worked as a construction project site manager with SX Projects Pty Ltd until 28 November 2014. He was given notice of dismissal on 18 November 2014 by email. The email contained no reasons for dismissal. He was told by Construction Manager, Mr Stephen Millard by telephone that he “was being made redundant...due to my apparent uncertainty of my future employment plans with the company and my apparent altercation via email with another staff member”.[1]

[1]Form F2 - Application for Unfair Dismissal Remedy

[2] Mr Harris has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[3] SX Projects Pty Ltd has objected to his application being made on the grounds that Mr Harris’s employment does not meet the minimum employment period and his annual rate

of earnings was greater that the high income threshold (currently $129,300 per annum).[2]

[2]Form F3 - Employer's Response to Application for Unfair Dismissal Remedy

[4] The matter came before me for hearing on 7 March 2014. SX Projects Pty Ltd was represented by Ms Kate O’Connell, Chief Financial Officer and Mr Harris represented himself. Although directions had been given on 14 February 2014 for SX Projects Pty Ltd to file submissions in support of its jurisdictional objection 14 days prior to the hearing, its material was only supplied to the Commission and Mr Harris on 6 March 2014. However, Mr Harris was satisfied that most of this material had already been seen by him and he was prepared to respond to the jurisdictional objection. Although not directed to, Mr Harris provided submissions to the Commission on 5 March 2014 and these submissions were supplied to Ms O’Connell on the day of hearing. I adjourned the hearing to allow time for Ms O’Connell to read these submissions.

[5] I allowed further time beyond the day of hearing for Mr Harris to provide any further information about his use of his private motor vehicle for work related purposes and for Ms O’Connell to consider the relevance of s.22 of the Act to her submission in relation to Mr Harris’s continuity of service for the purpose of calculating the minimum employment period.

[2014] FWC 3047

[6] Mr Harris supplied some material on 4 April 2014. Amongst this material were statutory declarations dated 13 March 2014 from Mr Scott Sturt, former Construction Foreperson, SX Projects Pty Ltd and from Mr Steven Baker, Building Operations Manager, Winston Hills Mall, dated 1 April 2014. Ms O’Connell also provided a statutory declaration from Mr Daniel Lipari of SX Projects Pty Ltd dated 4 April 2014. I have had no regard to these Statutory Declarations as Mr Sturt,…

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] FWC 3047
Decision Date: 9 May 2014

CaseChat Overview and Summary

In the matter of Harris v SX Projects Pty Ltd, the Fair Work Commission (FWC) was asked to decide whether Mr Malcolm Harris was protected from unfair dismissal under the Fair Work Act 2009 (Cth). SX Projects Pty Ltd had objected to the application on the grounds that Mr Harris did not meet the minimum employment period and his annual rate of earnings exceeded the high income threshold. The Deputy President of the FWC, Booth, heard the matter and dismissed the jurisdictional objection.

The primary issue was whether Mr Harris's employment period met the minimum employment period of six months and whether his annual rate of earnings was below the high income threshold of $129,300 per annum. The Deputy President concluded that Mr Harris's continuity of service was maintained from at least 1 September 2012 and that he had been employed for more than the minimum employment period at the time of his dismissal on 28 November 2013. The Deputy President also found that the annual rate of earnings, after deducting superannuation, travel allowance, and mobile allowance, was $128,641, which was less than the high income threshold.

The Deputy President dismissed the jurisdictional objection and allowed Mr Harris's application to proceed to be heard on its merits. The case highlights the importance of understanding the legal requirements for unfair dismissal applications and the need for employers to ensure that they have valid reasons for dismissal and that the dismissal is carried out in accordance with the law.

Orders