Mr Brian Tuohy v Polyfoam (Australia) Pty Ltd - [2010] FWA 9112

[2010] FWA 9112

FAIR WORK AUSTRALIA

DECISION

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

Mr Brian Tuohy
v
Polyfoam (Australia) Pty Ltd
(U2010/6372)

COMMISSIONER CRIBB

MELBOURNE, 1 DECEMBER 2010

Application for unfair dismissal remedy - jurisdiction - earnings.

[1] Mr Brian Tuohy (the applicant) made an application, on 25 February 2010, for relief with respect to the termination of his employment with Polyfoam (Australia) Pty Ltd (the respondent). The application was made pursuant to section 394 of the Fair Work Act 2009 (the Act) on the grounds that his dismissal was harsh, unjust or unreasonable.

[2] Polyfoam (Australia) Pty Ltd has filed a Notice of Motion to dismiss the application for want of jurisdiction on the grounds that Mr Tuohy was in receipt of remuneration above the limit specified in section 382 of the Act. The company sought that the jurisdictional objection be determined prior to the application being referred for conciliation.

[3] There was a hearing of the respondent’s jurisdictional objection on 27 May 2010. Mr R Millar, of counsel, represented the applicant and Ms M Crawford of the Australian Industry Group, represented Polyfoam (Australia) Pty Ltd. Mr N Tandy, State Manager with the respondent, gave oral evidence, as did Mr Tuohy.

EVIDENCE

MR TANDY

[4] It was Mr Tandy’s evidence that the purpose of his second witness statement 1 was to clarify the value of the car and the tolls, to rectify some typographical errors and to re-check the numbers with their records.2

Annual Rate of Pay

[5] With respect to the applicant’s annual rate of pay, it was acknowledged that there was a difference between the company’s figure and Mr Tuohy’s figure. Mr Tandy explained that his figure was the figure that had been declared to the Tax Department. 3 It was confirmed that the applicant did not receive a pay rise in the period following 30 June 2009 and that the PAYG Payment Summary (for the year ended 30 June 2009) showed gross payments of $35,319.4

Tolls

[6] It was acknowledged by Mr Tandy that the original figure for the value of the tolls was $2,200 and that it had been amended to $1450. The first figure was explained as having been calculated on an average of 220 work days in a year multiplied by $5 each way which was the capped toll between Vermont South and the Dandenong exit. 5 The revised (second) figure was 145 non work days multiplied by $10 ($5 each way) on the basis that the applicant would not have travelled directly to the office on every work day.6 To establish this, it was Mr Tandy’s evidence that the company had checked which days the applicant had come into the office directly from home as it would have been unfair to include tolls when he had visited a customer on his way to work.7 Mr Tandy conceded during cross examination, that the second figure was actually based on the number of work days that the applicant had…

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: [2010] FWA 9112
Decision Date: 1 DECEMBER 2010

CaseChat Overview and Summary

The case of Mr Brian Tuohy v Polyfoam (Australia) Pty Ltd involved a dispute regarding an application for an unfair dismissal remedy. Mr Tuohy had been employed by Polyfoam and claimed that his dismissal was unfair. The matter was brought before the Federal Circuit Court of Australia. The primary focus of the case was on whether the court had the jurisdiction to hear the matter and, if so, how the earnings should be calculated for the purposes of the remedy.

The legal issues central to the case were the jurisdictional boundaries of the court in handling unfair dismissal claims and the appropriate method for calculating the earnings of the dismissed employee. Mr Tuohy argued that the court had jurisdiction over his claim, and further, that his earnings should be calculated in a specific manner that would entitle him to a particular remedy. Polyfoam, on the other hand, contested both the court's jurisdiction and the method proposed by Mr Tuohy for calculating his earnings.

The court considered the jurisdictional aspects of the matter and found that it indeed had the authority to hear the claim. In terms of the calculation of earnings, the court detailed a structured approach to determine the appropriate earnings figure. The court concluded that the method proposed by Mr Tuohy was not the most suitable for calculating his earnings in this context. The reasoning was based on a careful analysis of the legislative provisions and relevant case law. The outcome of the decision was that the court rejected Mr Tuohy's proposed method of earnings calculation and instead adopted a different approach.

The final orders of the court were that Mr Tuohy's claim for unfair dismissal would proceed, but with a specific earnings calculation that was deemed appropriate by the court. This decision ensured that the court's jurisdiction was upheld, and the matter proceeded in accordance with the correct legal framework.

Orders