Jason Grinstead v Orbelo Pty Ltd
[2023] FWC 3440
•21 DECEMBER 2023
| [2023] FWC 3440 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Grinstead
v
Orbelo Pty Ltd
(U2023/8683)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 21 DECEMBER 2023 |
Application for an unfair dismissal remedy – Jurisdictional Objection
Mr Grinstead has filed an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. His former employer, Orbelo Pty Ltd (Orbelo), contends that the Commission has no jurisdiction to deal with the claim.
Mr Grinstead was represented in the proceedings by himself. Orbelo was legally represented. I allowed legal representation for the purposes of s.596 of the Act so that the matter might be dealt with more efficiently.
Mr Grinstead was employed as an Occupational Safety and Health Manager. He commenced employment in July 2022. His last day of work was 16 August 2023. He was notified that his employment had terminated in an email dated 11 September 2023. The reason given in the email for the termination of the employment was that he had abandoned his employment. Mr Grinstead disputes this.
Mr Grinstead worked on a former mining site in Gympie in Queensland. The site was operating as a reclamation project to reprocess tailings dams with the aim of extracting any residual gold that had not been mined when the site was previously active. Mr Grinstead lived in Canberra and worked on a fly in fly out basis. Mr Grinstead left the site on 17 August 2023 and was due to fly back on 28 August 2023. In this period there was a change of management at the project. When Mr Grinstead turned up for his flight to return to work no flight had been booked. He contacted Orbelo to find out what was happening but did not get a response. He was paid on 31 August 2023 but not his usual contracted amount. He was paid his outstanding leave entitlements on the same day. Mr Grinstead’s believes he was unfairly dismissed as he did not abandon his employment. Rather, he was unable to attend work due to the actions of Orbelo. Further, Orbelo by taking the view that Mr Grinstead had abandoned his employment failed to pay him salary in accordance with his contract and any amount in lieu of notice.
In applications for a remedy arising from unfair dismissal, s.390 provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal and the person has been unfairly dismissed. Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period, and one or more of the following applies; the person is covered by a modern award, an enterprise agreement applies to the person, or the sum of the person’s annual rate of earnings and such other amounts calculated in accordance with the regulations is less than the high income threshold. The high income threshold is $167,500.
Section 296 requires that the Commission determine whether a person is protected from unfair dismissal before considering the merits of the application.
Mr Grinstead’s employment meets the first limb of the test in s.382, he had completed more than 6 months’ employment, which is the minimum employment period relevant to his application. Orbelo claims that the second limb is not met as Mr Grinstead was not covered by and award or agreement and he earned above the high income threshold. It is not contested that an enterprise agreement did not apply to Mr Grinstead’s employment.
Mr Grinstead claimed that he meets the second limb of the test in s.382 on two bases; he was covered by the Mining Industry Award 2020 (the Award), and his income was below the high income threshold. If he is right on either count, he is protected from unfair dismissal.
As to award coverage, s.48 provides that an award covers an employee if the award is expressed to cover the employee.
Clause 4 of the Award deals with coverage. Clause 4.1 states:
4.1 This industry award covers employers throughout Australia in the mining industry and their employees in the classifications listed in clause 15 — Minimum rates and classifications to the exclusion of any other modern award.
Clause 15 provides for 8 classifications. They range from Entry Level employees to Level 7 Dual Trade Instrument Technician. The levels are defined in Schedule A of the Award. The Schedule refers to classification groups which encompass; mining industry services employees, mining industry service and haulage employees, mining industry processing employees, mining industry underground employees, and mining industry trades employees. The classification structure is skilled based. The classifications are delineated by the level of skill held by the employee and the duties they are required to perform. Thus, introductory employees will have induction level training and be required to perform routine duties under direct supervision. As the classifications progress the level of training or qualifications are more onerous, and the tasks required to be performed are more complex. The duties in the classification structure include operating and maintaining equipment. Key attributes of the highest classifications defined in Schedule A of the Award, Levels 6 and 7, require an employee to have dual trades, have high precision trade skills, provide guidance and assistance to others, and be qualified to operate and work on machinery.
Mr Grinstead relied on a statutory declaration of his father, Mr Donald Grinstead, who was the Senior Site Executive at the Gympie site. Mr Grinstead Snr states that, while he held the title of manager, Mr Grinstead Jnr had no one directly reporting to him. He also states that Mr Grinstead Jnr was required to perform other tasks outside of his role as manager, including the operation of equipment, refuelling equipment, transporting equipment for operational reasons, performing dam inspections and water testing, participating in fire burn offs, installing security cameras, performing security checks, general housekeeping duties around site, and driving to suppliers to pick up goods.
I accept that these additional duties fall within the duties that persons in the classifications in the Award may perform. However, the performance of those duties by Mr Grinstead did not mean he was employed in those classifications.
Orbelo relied upon a statement of Mr Morton, Chief Financial Officer, who states that Mr Grinstead was engaged as the Occupational Safety and Health Manager and performed work in that role including attending weekly team meetings to report on occupational health and safety matters, providing information to senior management on occupational health and safety matters, and providing written reports on occupational health and safety matters. Mr Morton referred to almost 450 written reports prepared by Mr Grinstead in his 14 months of employment.
Orbelo also relied on a statement of Mr Bucak, its Construction Manager, who stated that everyone on site was required to report occupational health and safety matters to Mr Grinstead. Mr Bucak also stated that the Mr Grinstead was a hands on health and safety manager who would be in the field to ensure that safety processes were undertaken appropriately and safely. Mr Bucak also stated that he and others would also perform other duties and undertake general housekeeping on site from time to time.
Orbelo provided a copy of Mr Grinstead’s contract of employment. The contract states that Mr Grinstead was employed as Occupational Safety and Health Manager and lists key tasks and skills and attributes connected with that role. They include tasks of promoting, providing training, and ensuring compliance with occupational health and safety standards, investigating accidents and unsafe working conditions, and reporting to senior management on occupational health and safety matters.
I note the contract refers to the Award stating at clause 2.2 that the terms and conditions of employment will be in accordance with the Contract and where applicable the Mining Industry Award. The issue of coverage, however, is not determined by the contract, it is determined by s.48 of the Act by reference to the Award itself.
I find that Mr Grinstead was not employed in a classification referred to in clause 15 as defined in Schedule A of the Award and so was not covered by the Award.
The second matter that Mr Grinstead relies upon to fall within s.382 of the Act is that he was paid below the high income threshold. The relevant amount is $167,500. Orbelo relies upon Mr Grinstead’s contract which states that his salary is $168,000. Mr Grinstead states that the last payslip issued by Orbelo for the financial year between July 1, 2022 and 30 June 2023 listed his gross earnings for the year as $167.209.94. He states that while this gross amount is less than the amount he was contracted to receive, it is the best reflection of his annual remuneration. Mr Grinstead provided a copy of the payslip. It was for the fortnightly pay period 5 June 2023 to 18 June 2023 and indicated that the payment date was 19 June 2023. Consequently, the year-to-date figure of $167,209.94 was not for the full financial year. The payslip otherwise records Mr Grinstead’s annual salary as $168,000. It records that in that fortnight Mr Grinstead was paid $6,461.54. Multiplying that figure by 26 for each of the fortnights in a year gives annual earnings of $168,000.
On that basis I find that Mr Grinstead’s annual earnings for the purpose of s.382 were not less than the high income threshold.
The circumstances described by Mr Grinstead strongly suggest that he was treated harshly by Orbelo. It appears that Orbelo has also failed to meet its obligations under Mr Grinstead’s contract and the Act. The consequence of my findings that the Award did not cover Mr Grinstead and that he earned more than the high income threshold at the time he was dismissed, however, is that Mr Grinstead was not a person protected from unfair dismissal under s.382 of the Act. So, I am unable to make an order for a remedy for unfair dismissal.
On that basis, I dismiss the application.
DEPUTY PRESIDENT
Appearances:
Mr J Grinstead, the Applicant.
Mr R Bonig, Counsel, for the Respondent.
Instructed by Ms D Carling, Senior Associate, for the Respondent.
Mr J Morton, Chief Financial Officer of the Respondent.
Hearing details:
20 December 2023.
Sydney (via video via Microsoft Teams).
Printed by authority of the Commonwealth Government Printer
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