DECISION

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

Mr Glenn Whelan
v
BMD Constructions Pty Ltd
(U2016/4177)

DEPUTY PRESIDENT ASBURY

BRISBANE, 21 JUNE 2016

Application for unfair dismissal remedy – Jurisdictional objection – Whether employee is a person protected from unfair dismissal – Approach to deciding whether an employee is covered by a modern award – Whether employee covered by Professional Employees Award 2010 – Case law – Professional engineering services – Employee’s role was as a Project Manager – Duties carried out or a portion of those duties were not such that adequate discharge required qualifications of the employee as (or at least equal to those of) a graduate member of Engineers Australia – Employee not protected from unfair dismissal – application for an unfair dismissal remedy dismissed.

1. BACKGROUND

[1] Mr Glenn Whelan applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by BMD Constructions Pty Ltd (BMD). Mr Whelan was employed by BMD in the position of Project Manager from January 2007 until his dismissal on 11 January 2016. BMD raises a jurisdictional objection to Mr Whelan’s unfair dismissal application on the ground that Mr Whelan is not a person protected from unfair dismissal.

[2] In relation to when a person is protected from unfair dismissal, s. 382 provides:

“382. When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[3] It is not in dispute that Mr Whelan has completed at least the minimum period of employment with BMD. It is also common ground that an enterprise agreement does not apply to Mr Whelan and that his annual rate of earnings exceeds the high income threshold. BMD asserts that Mr Whelan was not covered by a modern award. Mr Whelan maintains that a modern award – the Professional Employees Award 2010 (the Award) – covered him. This is the issue for determination and if the Award did not cover Mr Whelan, he is not a person protected from unfair dismissal and his application for an unfair dismissal remedy must be dismissed.

2. THE AWARD

[4] The coverage of the Award is expressed as follows in clause 4:

“4. Coverage

4.1 This award covers employers throughout Australia with respect to their employees performing professional engineering and professional scientific duties who are…

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 Whelan v BMD Constructions Pty Ltd

Details

AGLC: Mr Glenn Whelan v BMD Constructions Pty Ltd [2016] FWC 4002
Case: [2016] FWC 4002
Decision Date: 21 JUNE 2016

CaseChat Overview and Summary

In the matter of Mr Glenn Whelan versus BMD Constructions Pty Ltd, the Fair Work Court was tasked with deciding an application for an unfair dismissal remedy. Mr Whelan, the applicant, contended that his dismissal was unfair and sought relief under the Fair Work Act 2009. BMD Constructions Pty Ltd, the respondent, argued that Mr Whelan was not an employee protected from unfair dismissal, thereby questioning the court's jurisdiction to hear the matter.

The court was required to determine several legal issues central to the dispute. Primarily, it had to decide whether Mr Whelan qualified as an employee protected from unfair dismissal under the Fair Work Act. Additionally, the court had to ascertain whether Mr Whelan was covered by the Professional Employees Award 2010, which would further establish his eligibility for protection. This involved examining Mr Whelan's role as a Project Manager and whether his duties required qualifications equivalent to those of a graduate member of Engineers Australia. These questions were pivotal in deciding the jurisdictional reach of the court.

The Fair Work Court meticulously reviewed Mr Whelan's role and responsibilities as a Project Manager. It found that while some of his duties might have required professional engineering knowledge, not all his tasks demanded qualifications at least equal to those of a graduate member of Engineers Australia. Consequently, the court concluded that Mr Whelan did not meet the criteria for protection under the relevant award. As a result, the court held that it lacked jurisdiction to entertain the application for an unfair dismissal remedy. The application was dismissed on the grounds that Mr Whelan was not protected from unfair dismissal.

Orders