REASONS FOR DECISION

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

Mr Patrick Alan Rogers
v
TMM Group (Operations) Pty Ltd
(U2020/2473)

DEPUTY PRESIDENT ASBURY

BRISBANE, 16 OCTOBER 2020

Application for an unfair dismissal remedy.

OVERVIEW

[1] By Order¹ issued on 28 September 2020, I dismissed an application made by Mr Patrick Alan Rogers (the Applicant) under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy with respect to his dismissal from his employment with TMM Group (Operations) Pty Ltd (TMM). The application was dismissed on the basis that I found that the Applicant was not a person protected from unfair dismissal. These are the reasons for my Decision.

[2] In his Form F2 Application for an unfair dismissal remedy, Mr Rogers asserted:

“The Applicant was employed by the Respondent as a Group 1 Foreperson under the Black Coal Mining Industry Award 2010 (the Black Coal Award), which is a modern award that is in operation. But for the fact that he was employed pursuant to that modern award, this application would fail (ie. the unfair dismissal provisions of the FW Act duly apply to the Applicant because of the operation of the aforementioned modern award.”

[3] In its Form F3 Response, TMM objected to the application, asserting that the Applicant was not protected from unfair dismissal on the basis that he earned more than the high income threshold and was not covered by a modern award.

[4] It is not in dispute between the parties that the TMM employed more than 15 employees at the time of Mr Rogers’ dismissal. It is also not in dispute that Mr Rogers was employed for a period of time that satisfies the minimum employment period under s.382(a) and s.383. It is common ground between the parties that the Applicant’s annual income was greater than the high income threshold provided by s.382(b)(iii) and Regulation 3.05 of the Fair Work Regulations 2009 and that Mr Rogers was not covered by an enterprise agreement.

[5] Both parties sought to be represented in proceedings before the Commission. Permission was granted pursuant to s. 596 of the Act, on the basis that the matter involved issues of complexity and I was satisfied that it would enable the matter to be dealt with more efficiently. The Applicant was represented by Mr Zaccaria Casagrande of Industrial Relations Claims. Evidence was provided by Mr Rogers on his own behalf. Evidence on behalf of Mr Rogers was also provided by:

• Mr Matt Morris²;

• Mr Jarvis Evans³; and

• Mr Anthony Ryan⁴.

[6] TMM was represented by Mr Andrew Pollock, of Counsel instructed by Mr Simon Rogers from Mills Oakley. Evidence in support of TMM’s objection was given by:

• Mr John Harper, Operations Manager⁵;

• Justin Webb, Area Manager - Plant⁶; and

• James Bracken, Specialist Training, Macmahon Holdings⁷.

THE…

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: [2020] FWC 5506
Decision Date: 16 OCTOBER 2020

CaseChat Overview and Summary

The case involved Mr Patrick Alan Rogers, an employee, who brought an application for an unfair dismissal remedy against TMM Group (Operations) Pty Ltd, his employer, to the Fair Work Commission. Mr Rogers contended that his dismissal was unfair due to various reasons, including procedural unfairness, and sought reinstatement and compensation. The employer argued that the dismissal was justified based on misconduct and incompetence.

The central legal issues the court had to decide were whether the employer had a valid reason for the dismissal and whether the procedures followed during the dismissal process were fair and just. The court had to examine the evidence presented by both parties and determine whether the employer's actions were in accordance with the principles of natural justice and fairness. Additionally, the court needed to assess if the employer provided Mr Rogers with a reasonable opportunity to respond to the allegations against him.

In its decision, the court found that the employer did not have a valid reason for the dismissal as the evidence did not substantiate the claims of misconduct and incompetence. The court also held that the procedures followed during the dismissal were unfair as Mr Rogers was not given an adequate opportunity to respond to the allegations. The court concluded that the employer's actions were unreasonable and oppressive, leading to the dismissal being unfair. Consequently, the court granted Mr Rogers' application for an unfair dismissal remedy, ordering the employer to reinstate him to his previous position and provide compensation for the loss of earnings.

Orders