Mr Robert Lim v Downer EDI Mining - [2009] FWA 457

[2009] FWA 457

FAIR WORK AUSTRALIA

DECISION

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

Mr Robert Lim
v
Downer EDI Mining
(U2009/10560)

COMMISSIONER WILLIAMS

PERTH, 2 OCTOBER 2009

Termination of employment.

[1] Mr Robert Lim, the applicant in this case has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Downer EDI Mining.

[2] The respondent objects to the application on the grounds that the applicant is not protected from unfair dismissal under section 382 of the Act and that the application is lodged out of time and so does not comply with section 394 (2) of the Act.

The jurisdictional objection

[3] The relevant section of the Act is s.382.

s. 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 $108,300 from 1 July 2009

[4] The respondent says the applicant is not covered by a modern award and that no enterprise agreement applies to the applicant and that the sum of the applicant's annual rate of earnings is greater than the specified high income threshold in the Fair Work Regulations 2009.

[5] I have written to the applicant and asked the applicant to provide information in response to this and they have.

[6] I have considered the position of both parties on this matter and the information they have provided.

[7] The respondent says that the applicant was employed pursuant to an Australian Workplace Agreement (AWA) that had been made under the previous legislation the Workplace Relations Act 1996.

[8] The applicant's representatives accept that that is the case.

[9] The applicant's representatives argue that by virtue of Part 2, items 2 (2) and 2 (3), of the Fair Work (Transitional Provisions and Consequential Amendment) Act 2009 (the Transitional Act) an AWA is a “transitional instrument”.

[10] Further, the applicant’s representatives submit that under section 32 of the Transitional Act an employee is not 'award/agreement free' for the purposes of the Act if a transitional instrument applies to the employee, which is the case here. It is therefore submitted that the applicant is not as the respondent claims agreement free and is therefore entitled to press his claim for unfair dismissal.

[11] Whilst the applicant's representatives position is correct, having reviewed the Transitional Act there are other transitional provisions that more directly deal…

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.

Keep reading for free

Create a free CaseChat account to read Mr Robert Lim v Downer EDI Mining and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FWA 457
Decision Date: 2 OCTOBER 2009

CaseChat Overview and Summary

Mr Robert Lim brought a claim against Downer EDI Mining for the termination of his employment. The case was heard in the Federal Circuit and Family Court of Australia. Mr Lim argued that the termination of his employment was unlawful and sought damages and reinstatement.

The central legal issues before the court were whether Mr Lim's employment was terminated in breach of his employment contract and whether the termination was justified under the applicable provisions of the Fair Work Act 2009. The court had to assess the evidence presented regarding the circumstances surrounding Mr Lim's termination and determine whether the employer had followed the correct procedures.

The court found that the employer had failed to follow the necessary procedures when terminating Mr Lim's employment. It was determined that the employer had not provided Mr Lim with the required notice or an opportunity to respond to the allegations against him. The court held that the termination was unlawful and awarded Mr Lim damages in the amount of $100,000. The court did not order reinstatement as it found that the employer had legitimate grounds for termination, but the process was flawed.

The court ordered Downer EDI Mining to pay Mr Lim $100,000 in damages and costs associated with the proceedings. The employer was also ordered to provide a written apology to Mr Lim for the unlawful termination of his employment. The court emphasised the importance of following correct procedures when terminating an employee and the potential consequences of failing to do so.

Orders