Jamie Lloyd v Leighton Mining Pty Ltd

[2014] FWC 5883

[2014] FWC 5883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Lloyd
v
Leighton Mining Pty Ltd
(U2014/5824)

DEPUTY PRESIDENT MCCARTHY PERTH, 29 AUGUST 2014

Application for relief from unfair dismissal.

[1] An application for unfair dismissal remedy was lodged by Mr Jamie Lloyd (the Applicant) on 21 March 2014. The Applicant asserted that he had been unfairly dismissed from his employment with Leighton Mining Pty Ltd (the Respondent).

[2] On 10 May 2014, the Respondent filed a Form F4 - Objection to Application for Unfair Dismissal Remedy (the Respondent’s Objection). The Respondent submitted that the Applicant was unable to lodge an unfair dismissal application as he did not satisfy the requirements of s.382(1)(b) of the Fair Work Act 2009 (the FW Act).

[3] I wrote to the Applicant on 5 June 2014 attaching a copy of the Respondent’s Objection. I requested that the Applicant provide information in relation to his annual remuneration and whether he contended that he was covered by an Enterprise Agreement or a Modern Award. The Applicant was requested to provide a response by 5:00pm on 19 June 2014.

[4] On 14 June 2014, the Applicant provided a response to my letter of 5 June 2014. The Applicant confirmed that his annual earnings exceeded the high income threshold. The Applicant also stated as follows:

“1. I am unsure whether the position I held at Leighton’s as Mining Supervisor was covered under the modern award in the Mining Industry Award 2010 or other related awards and I seek clarification from Fair Work Australia as to whether my position as Supervisor in the mining industry was covered under the award.

2. I believe that I was covered by an enterprise agreement, namely the attached agreement which I signed on or around the 5th of June and of which a copy is attached as sent to me. I believe I signed the agreement just prior to going to Solomon and the purpose of this new contract was to cover the terms of employment at Solomon's. Further, the employment agreement is not restricted to location and does not specify an end of contract period or location in which the employer-employee contractual arrangement applies to. The agreement also specifies that the company may transfer you to other positions within the company. I commenced employment at the greenfields site at Solomon's shortly thereafter.”

[5] The document attached to the Applicant’s email was a copy of his individual employment agreement.

[6] On 20 June 2014, my Chambers sent an email to the Applicant advising as follows:

“1.)   The agreement you attached is not an Enterprise Agreement that would cause you to be covered.

2.)   Generally, Supervisors in the Mining Industry (other than coal) are not covered by an award.

3.)   The onus is on you to establish whether you are covered by an award or not.”

[7] As no response was received by the Applicant, my Chambers wrote to the Applicant by email requesting that he provide a response to the email of 20 June 2014 by close of business 29 July 2014. No response was provided by the Applicant.

[8] On 1 August 2014, I sent a letter to the Applicant by both email and post. I requested that the Applicant advise my Chambers by 5:00pm on 8 August 2014 whether he intended to proceed with his application. I also advised the Applicant that if no response was received I would presume that he had discontinued his application. I have received no response or communication at all from the Applicant.

[9] I have therefore determined to dismiss the application pursuant to s.587 of the FW Act. The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR554718>