Mr Ryan Archer v Australian Ceramics Engineering Pty Ltd - [2022] FWC 3029

[2022] FWC 3029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Ryan Archer
v

Australian Ceramics Engineering Pty Ltd

(U2022/3719)

COMMISSIONER WILLIAMS

PERTH, 18 NOVEMBER 2022

Application for an unfair dismissal remedy

This decision concerns an application made by Mr Ryan Archer (the applicant) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The respondent is Australian Ceramics Engineering Pty Ltd.

The application was made on 29 March 2022.

On 5 May 2022, the respondent filed a Form F3 – Employer Response to Unfair Dismissal Application. Therein, the respondent asserted a jurisdictional objection that the applicant earned more than the high-income threshold and was not able to make the application.

The matter was listed for a telephone conciliation conference with a Commission staff member.

On 18 May 2022, the Commission records show that the respondent confirmed they were willing to participate in that conciliation despite the jurisdictional objection they had raised.

Subsequently on 20 May 2022, the respondent emailed the Commission and advised that as a result of their assertion that the applicant exceeded the high-income threshold, they object to the conciliation meeting and requested that it be cancelled.

Consequently, the conciliation conference did not proceed, and the matter was in due course allocated to me for hearing and determination.

The parties were issued a Notice of Listing with directions for the filing of materials. Those directions firstly required the respondent to file with the Commission and serve its materials on the applicant in support of their jurisdictional objection.

Those directions expressly states that they must be complied with and that,
“If the respondent does not comply the matter may be decided on the basis of the applicant’s materials only.”
Nothing had been received from the respondent by the due date on 15 July 2022 and so the Commission emailed a letter to the respondent noting its failure to comply with the Commission’s directions to file its materials and directing it to urgently file and serve its materials on the applicant’s and repeating that a failure to do so may result in the matter being determined on the applicant’s materials only.

The Commission received no response to this letter and the respondent has not filed any materials with the Commission in support of its jurisdictional objection, or at all.

On 28 October 2022, there was no appearance by the respondent or by anyone on their behalf on the day of hearing. There has been no contact from the respondent up to the date of this decision.

Consequently, the Commission proceeded with the hearing and this matter will be determined on the basis of the materials filed by the applicant. The Commission will also have regard for the Form F3 response filed by the respondent.

Evidence and factual findings

The applicant’s witness statement dated 11 August 2022 is set out below.

The respondent is a manufacturing company providing ceramic wear products to the mining industry.

I worked for…

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: [2022] FWC 3029
Decision Date: 18 NOVEMBER 2022

CaseChat Overview and Summary

In the matter of Mr Ryan Archer v Australian Ceramics Engineering Pty Ltd [2022] FWC 3029, the Fair Work Commission (FWC) was tasked with deciding whether Mr Archer's dismissal by the respondent, Australian Ceramics Engineering Pty Ltd, was unfair. The central issue before the Commission was whether there was a valid reason for the dismissal and whether the dismissal process was procedurally fair. Mr Archer, a Senior Site Services Supervisor, was dismissed for not complying with a lawful direction to be vaccinated against COVID-19, as required by the Western Australian Government’s Resources Industry Workers (Restrictions on Access) Directions. The Commission was required to determine if the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The Commission first addressed the jurisdictional objection raised by the respondent, which argued that Mr Archer's dismissal should not be considered due to his earnings exceeding the high-income threshold. The Commission found that the calculations of Mr Archer's annual income by the respondent incorrectly included non-guaranteed overtime, which is not considered part of 'earnings' under the Fair Work Act. As a result, Mr Archer's annual earnings were below the high-income threshold, and the objection was dismissed.

On the merits of the dismissal, the Commission found that there was a valid reason for the dismissal. The Western Australian Government’s Directions required all resource industry workers to be vaccinated to access mine sites, and Mr Archer's inability to comply with this direction meant he could not perform the inherent requirements of his role as a Senior Site Services Supervisor, which involved attending mine sites. The Commission noted that the respondent had communicated the vaccination requirement and the potential consequences of non-compliance to Mr Archer beforehand. However, the Commission found the dismissal to be unreasonable due to the respondent's failure to honor a prior commitment to redeploy Mr Archer to the workshop if he chose not to be vaccinated. Despite the possibility of redeployment, the respondent opted to dismiss Mr Archer without adequately explaining why the prior commitment was not upheld.

In conclusion, the Commission found that Mr Archer was unfairly dismissed. While reinstatement was not deemed appropriate, the Commission ordered compensation of $34,200, reflecting the remuneration Mr Archer would have earned had he not been dismissed, less a deduction for the period the applicant could have reasonably sought alternative employment.

Orders