DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark McCullagh
v
Acciona Infrastructure Australia Pty Ltd
(U2018/402)

DEPUTY PRESIDENT BULL

SYDNEY, 8 JUNE 2018

Application for an unfair dismissal remedy. High income threshold exceeded, whether applicant award covered. Jurisdictional objection upheld.

[1] Mr McCullagh has made an application to the Fair Work Commission (the Commission) alleging he was unfairly dismissed from his employment with Acciona Infrastructure Australia Pty Ltd (Acciona) pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Mr McCullagh was employed as General Foreperson working on the Sydney CBD and South Sydney East Light Rail Project (the Project) at the time of his dismissal. The Project was in its construction stage at the time of his dismissal.

[3] The respondent Acciona is a participant in the ALTRAC Light Rail consortium together with Transdec Sydney, Alstrom Transport Australia and Capella Capital. The consortium has been contracted by the New South Wales Government to design, build, operate, maintain and finance the Project. 1

[4] Mr McCullagh was first employed on 1 August 2016, 2 as a Foreperson reporting to a General Foreperson, Mr Stuart Sweeney, on a salary package of $175,200 per annum plus a fully maintained motor vehicle. On 13 March 2017 Mr McCullagh was promoted to General Foreperson on a total salary package of $202,575 plus a fully maintained motor vehicle.

[5] Mr McCullagh’s unfair dismissal application states that on Monday 18 December 2017, while he was off work on leave, he arrived at his worksite on Driver Avenue, Moore Park to hand over plant and equipment keys following a request from a leading hand who was onsite. He was not reporting for work that day as he had been granted three days in lieu as time off by his General Superintendent Mr Garry Todd, from 17 December to 20 December 2017. On completion of his time off in lieu he was then to immediately commence approved annual leave commencing 21 December 2017 until 7 January 2018.

[6] On arrival at the worksite to handover the keys, Mr McCullagh was asked to complete a random drug test by an administrative assistant. He initially refused as he did not think the request had been made with the requisite authority and he was not reporting for work. He eventually agreed to undertake the drug test and failed. He was told he was stood down and to leave site and make his way home via public transport. He was asked to return to work on Thursday 21 December 2018, whereupon he was summarily dismissed.

[7] These circumstances and other factors have led Mr McCullagh to his make his unfair dismissal application. At the date of the hearing Mr McCullagh remained unemployed.

[8] Acciona’s written response (Form F3) stated that Mr McCullagh was accorded ‘substantive and procedural fairness’ and ‘afforded a fair go all round’. The Form F3 did not contain any further detail in this regard. Acciona objected to the application on the…

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.

Keep reading for free

Create a free CaseChat account to read Mark McCullagh v Acciona Infrastructure Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 2997
Decision Date: 8 JUNE 2018

CaseChat Overview and Summary

McCullagh brought an application for unfair dismissal remedy against Acciona Infrastructure Australia Pty Ltd in the Fair Work Commission. The applicant contended that his dismissal was unjust, and sought relief under the Fair Work Act 2009. The dispute centred around the legitimacy of the dismissal and the procedural fairness observed during the termination process. The respondent argued that the dismissal was justified and that the application should be dismissed due to procedural errors on the part of the applicant.

The primary legal issues before the Commission were whether the application fell within the jurisdiction of the Fair Work Commission due to the high income threshold, and whether the applicant's award covered the dismissal. Additionally, the court had to determine if there was merit in the applicant's claim of unfair dismissal. The respondent raised a jurisdictional objection, contending that the applicant's income exceeded the threshold for which the Fair Work Commission has jurisdiction over unfair dismissal matters.

The Commission found that the applicant's income did indeed exceed the prescribed threshold, thus falling outside the jurisdiction of the Fair Work Commission for unfair dismissal claims. The Commission also considered the applicant's argument regarding the coverage of his award but found that this did not alter the jurisdictional defect. As such, the jurisdictional objection was upheld, and the application was dismissed. The Commission held that it lacked the authority to entertain the application due to the income threshold issue, and no further substantive issues were considered.

The Fair Work Commission dismissed the application for unfair dismissal remedy. The Commission found that the applicant's income exceeded the threshold for its jurisdiction and, as a result, could not proceed with the unfair dismissal claim. The jurisdictional objection was upheld, and no substantive determination on the fairness of the dismissal was made.

Orders