DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Newton
v
Lend Lease Engineering Pty Ltd
(U2018/7514)

COMMISSIONER SAUNDERS

NEWCASTLE, 16 OCTOBER 2018

Application for an unfair dismissal remedy - not employed under a contract of employment for a specified task - employment not terminated on completion of a task - dismissal harsh and unreasonable - compensation ordered.

[1] Mr Michael Newton was employed by Lendlease Engineering Pty Ltd (Lendlease) in the period from 28 November 2017 until 29 June 2018. During that time Mr Newton worked for Lendlease on sections 10 and 11 of the Woolgoolga to Ballina, Pacific Highway upgrade project. Lendlease refers to that project as the Richmond to Ballina or R2B project.

[2] Mr Newton contends that he was dismissed by Lendlease and his dismissal was harsh, unjust and unreasonable.

[3] Lendlease denies that it dismissed Mr Newton and, in the alternative, contends that any dismissal of Mr Newton was not harsh, unjust or unreasonable.

[4] I heard this matter in the Byron Bay Local Court on 25 September 2018. Mr Newton gave evidence in support of his unfair dismissal claim. Mr Paul Bull, General Superintendent, and Mr Brett Macauley, Superintendent, gave evidence on behalf of Lendlease.

Initial matters

[5] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of Mr Newton’s application. There is no dispute between the parties and I am satisfied on the evidence that each matter set out in s 396 of the Act, insofar as it is relevant, is satisfied in this case.

Was Mr Newton dismissed?

[6] Lendlease contends that Mr Newton was employed under a contract of employment for a specified task and his employment terminated on completion of the task, with the result that he was not dismissed (s 386(2)(a) of the Act). In the alternative, Lendlease contends that Mr Newton was not dismissed because his employment with Lendlease was not terminated on Lendlease’s initiative within the meaning of s 386(1)(a) of the Act.

What is a contract of employment for a specified task?

[7] In Dale v Hatch Pty Ltd, 1 a Full Bench of the Fair Work Commission (Commission) considered the meaning of the expression “contract of employment … for a specified task” in s 386(2)(a) of the Act:

“[8] The consideration of Ms Dale’s appeal must start with determining the meaning of the expression “contract of employment… for a specified task” in s.386(2)(a). The ordinary meaning of the word “task” is, as stated in the Decision, a piece of work to be performed or undertaken. That was the meaning assigned to the term in the decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) in Qantas Airways Limited v Fetz. It must be the task of the employee, not the employer, as was pointed out by Wilcox…

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: [2018] FWC 6385
Decision Date: 16 OCTOBER 2018

CaseChat Overview and Summary

The case involved Michael Newton, an employee, who brought an application for an unfair dismissal remedy against his employer, Lend Lease Engineering Pty Ltd. Newton alleged that his dismissal was unjust and harsh, and he sought compensation. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia.

The primary legal issue before the Commission was whether Newton's dismissal was unfair, given that he was not employed under a contract for a specified task, and his employment was not terminated upon the completion of that task. The Commission had to assess the fairness of the dismissal under the Fair Work Act 2009, considering the totality of the circumstances, including the nature of the employment, the reasons for the dismissal, and the procedural fairness observed.

In its reasoning, the Commission found that Newton's dismissal was indeed harsh, unjust, or unreasonable. It held that despite not being employed under a contract for a specified task, the dismissal occurred without adequate procedural fairness, and the reasons provided for the dismissal were not substantial. The Commission emphasised the importance of procedural fairness in employment terminations, particularly in cases where the reasons for dismissal are significant. Consequently, the Commission ordered compensation for Newton, reflecting the unjust nature of his dismissal.

The Fair Work Commission ordered Lend Lease Engineering Pty Ltd to pay Michael Newton compensation for the unfair dismissal. The amount was determined based on the principles of fairness and the specific circumstances of the case, including the duration of employment and the nature of the dismissal. This decision underscores the importance of procedural fairness in employment terminations and the Commission's role in ensuring that employees are treated justly in such matters.

Orders