Mr Glenn Robert Macdonald v Mineral Resources Limited - [2022] FWC 981

[2022] FWC 981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Glenn Robert Macdonald
v

Mineral Resources Limited

(U2021/9144)

DEPUTY PRESIDENT BINET

PERTH, 17 MAY 2022

Application for an unfair dismissal remedy

On 11 October 2021 Mr Glenn Macdonald (Mr Macdonald) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Mineral Resources Ltd (Mineral Resources).

On 28 October 2021 Mineral Resources filed a Form F3 Employer Response to an Unfair Dismissal Application, raising the jurisdictional objection that Mr Macdonald earned more than the high-income threshold ($158,500 for dismissals after 1 July 2021).

On Friday 18 February 2022, the matter was listed for conciliation however the issues in dispute between the parties could not be resolved.

Taking into account the parties wishes and circumstances, it was determined that a Determinative Conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Determinative Conference in Perth on Tuesday 22 February 2022 (Determinative Conference).

Directions for the filing of materials in advance of the Determinative Conference were issued to the parties on 16 December 2021 (Directions).

Permission to be represented

The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

Neither party sought permission to be represented at the Determinative Conference.

At the Determinative Conference Mr Macdonald represented himself and Mr King represented Mineral Resources.

Evidence

The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

In accordance with the Directions Mr Macdonald filed a witness statement setting out his evidence in chief in advance of the Determinative Conference.[2] At the Determinative Conference Mr Macdonald gave further oral evidence.

In accordance with the Directions Mineral Resources filed a witness statement setting out the evidence in chief of its witness Mr King (Mr King).[3] Mr King is the Industrial Relations Manager of Mineral Resources. At the Hearing Mr King cross examined by Mr Macdonald.

The parties jointly prepared and filed a Digital Court Book containing the evidence and submissions of the parties filed prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1.

In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

Mr Macdonald commenced employment with Mineral Resources on 28 December 2020 in the position of Senior Safety Advisor at the Mount Marion mine site pursuant to an employment contract dated 18 December 2020 (Contract).[4]

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.

Continue reading Mr Glenn Robert Macdonald v Mineral Resources Limited

Details

AGLC: Mr Glenn Robert Macdonald v Mineral Resources Limited [2022] FWC 981
Case: [2022] FWC 981
Decision Date: 17 MAY 2022

CaseChat Overview and Summary

Mr Glenn Robert Macdonald applied to the Fair Work Commission for a remedy for unfair dismissal against Mineral Resources Limited. The primary dispute was whether Mr Macdonald's site uplift was to be included in his annual earnings for the purpose of determining whether his earnings exceeded the high-income threshold of $158,500, which would exclude him from protection against unfair dismissal. Mr Macdonald argued that the site uplift was not to be included in his annual earnings, whereas Mineral Resources submitted that it should be included. The Court had to decide whether the site uplift was to be included in Mr Macdonald's annual earnings for the purpose of determining whether his earnings exceeded the high-income threshold.

The Court considered the various authorities on this issue. It found that the site uplift was not a reimbursement or allowance as it was not referenced to any specific costs incurred by Mr Macdonald. It was a fixed sum that did not vary depending on the hours of work performed or sales achieved. It was not a discretionary payment such as a discretionary bonus. The fact that the site uplift was not payable during paid or unpaid leave did not mean the amount of the payment could not be determined in advance. The annual rate of earnings was to be assessed as at the time of dismissal. The Court found that Mr Macdonald's annual earnings exceeded the high-income threshold, and he was therefore not protected from unfair dismissal.

Accordingly, the Court dismissed Mr Macdonald's application for a remedy for unfair dismissal. An order to this effect will be issued with this decision.

Orders