DECISION

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

Mr Peter Cross
v
Bechtel Construction (Australia) Pty Ltd
(U2014/15243)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 JUNE 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Peter Cross (Applicant) applied under s.394 of the Fair Work Act2009 (the Act) for an unfair dismissal remedy in relation to his former employment with Bechtel Australia Pty Ltd (Respondent). The matter was listed for jurisdictional hearing in Brisbane on 28 May 2015 on the basis of a jurisdictional objection brought by the Respondent.

[2] The Applicant was employed as a HSE Training Coordinator on Curtis Island at Bechtel’s Queensland Curtis LNG Project. The Applicant commenced employment with the Respondent on 11 March 2012. The Applicant went on unpaid leave on 29 July 2013 due to medical reasons. The Applicant’s employment with the Respondent was terminated on 5 November 2014. It was agreed that the Applicant completed a period of employment of at least the minimum employment period pursuant to s. 382 of the Act. It was also agreed that no modern award or enterprise agreement covered the Applicant in relation to his employment with the Respondent.

[3] The crux of the jurisdictional objection was the Respondent’s contention that the application should be dismissed on the basis that the Applicant was not a person protected from unfair dismissal because his annual rate of earnings exceeded the high income threshold pursuant to s. 382 of the Act. The Applicant contended that he was protected from unfair dismissal as his income did not exceed the high income threshold. The high income threshold at the time of the hearing was $133,000.00.

[4] Prior to the hearing of the appeal, Mr Osborne sought permission to appear for the Respondent. The Applicant was notified of this request and confirmed in an email on 18 May 2015 that he had no objection to the Respondent being represented. Having regard to s.596 of the Act and in light of the Applicant’s lack of objection to the request, permission was granted to the Respondent to be represented.

Legislation

[5] Section 396(b) of the Act requires that the question of whether a person is protected from unfair dismissal is to be decided before the merits of the person’s application is considered. Section 382 of the Act provides for when a person is protected from unfair dismissal as follows:

“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…

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: [2015] FWC 3639
Decision Date: 29 JUNE 2015

CaseChat Overview and Summary

Mr Peter Cross applied for relief from his dismissal by Bechtel Construction (Australia) Pty Ltd, contending that it was harsh, unjust, or unreasonable. The matter was heard in the Fair Work Commission. The core legal issues centred on whether the dismissal was justified under the general protections provisions of the Fair Work Act 2009 and whether the company had followed a fair process in terminating Mr Cross's employment. The court examined whether the dismissal was related to the employee's protected industrial activities and whether it was a case of genuine redundancy.

The Fair Work Commission deliberated on the evidence and submissions presented by both parties. It considered the nature and circumstances of Mr Cross's employment, the reasons provided by Bechtel for his dismissal, and the procedural fairness of the process followed. The Commission assessed whether the dismissal met the threshold for being considered unfair under the Act. After thorough analysis, the Commission concluded that the dismissal was justified and did not constitute an unfair action. The company had demonstrated that Mr Cross's termination was not related to any protected industrial activity and was part of a legitimate redundancy process.

Consequently, the Fair Work Commission dismissed Mr Cross's application for relief from unfair dismissal. The Commission found that Bechtel Construction had acted within its rights and followed appropriate procedures in terminating Mr Cross's employment. The decision underscored the importance of adhering to legal standards when dismissing employees, particularly regarding protected industrial activities and redundancy. The Commission's ruling affirmed that the dismissal was lawful and not unfair.

Orders