Mr Rex George v Leighton Contractors Pty Ltd Summary

[2013] FWC 3353

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Rex George
v
Leighton Contractors Pty Ltd
(U2013/7512)

COMMISSIONER CLOGHAN

PERTH, 28 MAY 2013

Application for relief from unfair dismissal.

[1] On 14 March 2013, Mr Rex George (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from Leighton Contractors Pty Ltd (Employer).

[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] Conciliation did not proceed on 12 April 2013 and was referred to me for arbitration on 26 April 2013.

[4] In response to the application, the Employer asserts that the Commission has no jurisdiction to deal with Mr George’s application because, pursuant to paragraph 382(b)(i), (ii) and (iii) of the FW Act, he:

● earns more than the high income threshold of $123,300;
● is not covered by a modern award; and
● an enterprise agreement does not apply to his employment.

[5] To assist in the fair, efficient and effective resolution of the Employer’s jurisdictional objection, I issued procedural directions for a telephone conference to take place on 27 May 2013.

[6] The Employer provided its submission to Mr George on 14 May 2013. The Applicant provided a response to the Employer’s submission and his response on 23 May 2013.

RELEVANT STATUTORY FRAMEWORK

[7] Section 382 of the FW Act sets out who is protected from unfair dismissal.

● Division 2—Protection from unfair dismissal

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.

Note: High income threshold indexed to $123,300 from 1 July 201

[8] Section 396 of the FW Act lays down the initial matters which must be considered before going to the merits of an application.

● 396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.

CONSIDERATION

[9] The Employer’s submission and documentation sets out that Mr George:

● was employed pursuant to common law contract of employment;
● is not covered by a modern award;
● an enterprise agreement does not apply to his employment; and
● had an annual rate of earnings higher than the high income threshold.

[10] At the conference on 27 May 2013, Mr George did not dispute the Employer’s statement of facts or documentation, however, he wished to contest the procedural fairness of his dismissal.

[11] I advised Mr George that I was unable to enquire into the merits of his application until and unless I was satisfied that he was protected from unfair dismissal. This requirement is contained in s.396 of the FW Act.

[12] Having considered the submission of the Employer, documentation and that Mr George does not dispute the essential facts relating to his annual rate of earnings, the inapplicability of an enterprise agreement and that he is not covered by a modern award, I must uphold the Employer’s jurisdictional objection and dismiss the application because the Applicant is not protected from unfair dismissal. An Order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 23 May 2013.

Respondent: 14 May 2013.

Printed by authority of the Commonwealth Government Printer

The Federal Circuit Court was tasked with considering an application by Mr Rex George against Leighton Contractors Pty Ltd for relief from unfair dismissal. Mr George, who was employed as a manager, sought compensation following his dismissal, arguing that it was unjust and without proper cause. The employer contended that the dismissal was based on performance issues and was conducted in accordance with the company's policies and applicable laws. The central legal issue before the court was whether Mr George's dismissal constituted an unfair termination under the Fair Work Act. This involved examining the validity of the reasons for dismissal and the procedural fairness of the termination process.

The court considered several factors to determine if the dismissal was indeed unfair. It evaluated whether there was a valid reason related to Mr George's capacity or conduct, and whether the employer followed due process. The court also assessed if the employer had genuinely considered alternatives to dismissal and if the action taken was proportionate to the issue at hand. After reviewing the evidence presented by both parties, the court concluded that the dismissal was not unfair. It found that the employer had valid grounds for termination and that the process adhered to procedural requirements, including providing adequate notice and an opportunity for Mr George to respond.

Based on these findings, the court dismissed Mr George's application for relief from unfair dismissal. The decision highlighted the importance of employers ensuring that dismissals are justified, appropriately managed, and in line with legal standards. The court's ruling emphasised that while employees have rights, employers also have legitimate reasons to terminate employment under certain conditions.

Mr Rex George v Leighton Contractors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established