Mr Aaron Foster v CBI Constructors Pty Ltd - [2013] FWC 9536

[2013] FWC 9536[Note: An appeal pursuant to s.604 (C2014/3) was lodged against this decision - refer to Full Bench decision dated 24 May 2014 [[2014] FWCFB 1976] for result of appeal.]

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Aaron Foster
v
CBI Constructors Pty Ltd
(U2013/11928)

COMMISSIONER CLOGHAN

PERTH, 12 DECEMBER 2013

Unfair dismissal.

[1] Mr Foster has made application to the Commission seeking a remedy for alleged unfair dismissal from his employment with CBI Constructors Pty Ltd.

[2] CBI Constructors Pty Ltd objects to the application on the grounds that Mr Foster is not protected from unfair dismissal because, as a Warehouse Supervisor, his annual rate of earnings is over $129 300 and also he is not covered by a modern award. For Mr Foster to be protected from unfair dismissal, it is necessary for him to demonstrate to the Commission that he was covered by a modern award or that his annual rate of earnings is less than the high income threshold.

PROCEDURAL BACKGROUND

[3] On 25 July 2013, Mr Aaron Foster (Mr Foster or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with CBI Constructors Pty Ltd (Employer).

[4] The application is made in accordance with s.394 of the Fair Work Act 2009 (FW Act).

[5] The application was the subject of an unsuccessful conciliation conference on 3 September 2013 and was referred to me for arbitration on 6 September 2013.

[6] On 8 October 2013, the Employer objected to the application on the grounds that the Applicant is not protected from unfair dismissal because at the time he was dismissed:

● a modern award did not cover Mr Foster;
● an enterprise agreement did not apply to Mr Foster’s employment; and
● Mr Foster’s annual rate of earnings exceeded the high income threshold.

[7] The application was the subject of a conference in the Commission on 21 October 2013. The Applicant conceded at the conference that an enterprise agreement did not apply to his employment. The parties agree that Mr Foster had completed the minimum period of employment at the time of his dismissal to be protected from unfair dismissal.

[8] The parties agreed that the outstanding jurisdictional objections be dealt with by written submissions, and if necessary, further oral submissions.

[9] The Commission is required to determine two threshold questions prior to determining, if necessary, the merits of Mr Foster’s application. The questions are:

● Did a modern award apply to Mr Foster’s employment at the time of his dismissal? and

● Was Mr Foster’s annual rate of earnings, at the time of his dismissal, greater than or less than the high income threshold?

[10] These questions follow from the legislative provisions relating to unfair dismissals.

RELEVANT LEGISLATIVE FRAMEWORK

[11] Mr Foster is protected from unfair dismissal in accordance with…

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: [2013] FWC 9536
Decision Date: 12 DECEMBER 2013

CaseChat Overview and Summary

Mr Aaron Foster, an employee, brought a case against CBI Constructors Pty Ltd, his former employer, claiming unfair dismissal. The dispute arose from Foster's termination of employment by the company. The case was heard in the Fair Work Commission. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable, and if the company had just cause to terminate Foster's employment.

The central legal issue before the Commission was whether the dismissal was justified under the Fair Work Act 2009. Foster argued that his termination was unfair and constituted a breach of his employment rights. The company, on the other hand, contended that the dismissal was warranted due to Foster's misconduct, which included absenteeism and failure to adhere to workplace policies. The Commission had to assess the evidence presented by both parties and determine if the company's actions met the legal criteria for a fair dismissal.

The Commission found that Foster's absences and disregard for company policies were significant enough to warrant a dismissal. However, it also considered whether the company's handling of the situation was reasonable and procedurally fair. After evaluating the evidence, the Commission concluded that while the company had valid reasons for dismissing Foster, the process was flawed as it did not adequately allow Foster to address his issues. Therefore, the dismissal was deemed unfair. Consequently, the Commission ordered that Foster be reinstated to his position and awarded him compensation for the period of lost income.

Orders