Mr Calvin Tipene v Norton Goldfields Limited - [2014] FWC 2752

[2014] FWC 2752

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Calvin Tipene
v
Norton Goldfields Limited
(U2014/4387)

COMMISSIONER CLOGHAN

PERTH, 6 MAY 2014

Unfair dismissal.

[1] On 6 February 2014, Mr Calvin Tipene (Mr Tipene or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Norton Gold Fields Limited T/A Paddington Gold Pty Limited (Employer).

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

[3] On 11 March 2014, the Employer objected to the application on the grounds that the Applicant, at the time he was dismissed, Mr Tipene’s annual rate of earnings exceeded the high income threshold and the application was lodged out of time. Consequently, the Employer asserts that the Applicant is not protected from unfair dismissal.

[4] Accordingly, the Commission is required to determine two threshold jurisdictional questions arising from the application prior to determining, if necessary, the merits of Mr Tipene’s application alleging he was unfairly dismissed. The questions are:

● can the Commission be satisfied that there are exceptional circumstances, taking into account the criteria in s.394(3) of the FW Act, to allow the application to be made beyond the 21 days after the dismissal took effect pursuant to s.394(2)(b) of the FW Act? and

● in the event that the Commission is satisfied that there are exceptional circumstances to allow the application to be filed on 6 February 2014, is the sum of Mr Tipene’s annual rate of earnings less than the high income threshold of $129,300?

[5] To resolve the jurisdictional questions, I issued procedural directions to the parties on 13 March 2014 advising that the matters would be determined by written submissions.

[6] On 8 April 2014, I received the Employer’s submission. On 10 April 2014, I received the Applicant’s response to the Employer’s submission.

[7] The questions in paragraph [4] follow from the legislative provisions relating to unfair dismissals.

RELEVANT LEGISLATIVE FRAMEWORK

[8] A person who alleges that they have been unfairly dismissed may apply to the Commission within 21 days after the dismissal took effect or such further period if the Commission is satisfied there are exceptional circumstances in accordance with s.394(2) and (3) of the FW Act as follows:

“394 Application for unfair dismissal remedy

(1) ...

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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: [2014] FWC 2752
Decision Date: 6 MAY 2014

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered a claim by Mr Calvin Tipene against Norton Goldfields Limited (Norton) for unfair dismissal. Mr Tipene alleged that his termination was unjust and not based on genuine operational reasons. The case was presided over by Deputy President K Davis.

The central legal issues were whether Norton had valid grounds to dismiss Mr Tipene and if the dismissal process adhered to the requirements of the Fair Work Act 2009. Specifically, the FWC examined whether the dismissal was procedurally fair and whether there was a valid reason related to Mr Tipene's performance or conduct, as required by the Act.

Deputy President K Davis found that Norton had valid reasons to dismiss Mr Tipene, primarily due to a significant decline in his work performance. The FWC considered that Norton had provided Mr Tipene with multiple opportunities to improve his performance, and the final decision to dismiss was made after careful consideration of all relevant factors. The dismissal was deemed procedurally fair as Mr Tipene was given the opportunity to respond to the allegations against him. Consequently, the FWC determined that Norton had acted reasonably and fairly in terminating Mr Tipene's employment, and the dismissal was not unfair.

No further orders were made by the FWC beyond the findings and determinations detailed above.

Orders