Robert Vardy v Valoriza Water Australia Pty Ltd T/A Southern Seawater Joint Venture - [2011] FWA 1600

[2011] FWA 1600

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Vardy
v
Valoriza Water Australia Pty Ltd T/A Southern Seawater Joint Venture
(U2010/12720)

DEPUTY PRESIDENT MCCARTHY

PERTH, 16 MARCH 2011

Termination of employment - jurisdictional objection - remuneration.

Background

[1] Mr Robert Vardy (the Applicant) lodged an Application for unfair dismissal remedy (the Application) regarding the termination of his employment by Valoriza Water Australia Pty Ltd Trading as the Southern Seawater Joint Venture (the Respondent). The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) is the Applicant’s representative.

[2] The Applicant was employed on 13 November 2009, in the position of Materials Manager for the Southern Seawater Desalination Project with the Respondent.

[3] The Respondent asserts that Fair Work Australia (FWA) does not have jurisdiction to deal with the matter on the grounds that the remuneration of the Applicant was greater than the high income threshold and he was not employed under a modern award or an enterprise agreement.

[4] The Applicant contends that his occupation is covered by the Manufacturing and Associated Industries and Occupations Award 2010 (the Award). It was submitted by the AMWU that if that Award did not cover the Applicant’s employment there was no other award that did.

[5] The Fair Work Act 2009 (the FW Act) provides at s.382 that 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.”

[6] It is not disputed that the Applicant had completed a period of employment of at least the minimum period, nor is it disputed that the Applicant’s annual rate of earning was above the high income threshold. It is also not disputed that there was no enterprise agreement that applied to the Applicant’s employment.

[7] The issue for me to determine is whether the Applicant was covered by an award.

The Evidence

[8] The Applicant contends that he was employed in the technical field. He submitted that his duties involved the planning, scheduling and coordinating of all aspects of inspecting, handling, processing and delivering of materials on site. This required the inspecting of materials for any coverage, shortage and damage. This also included supervising the unloading of materials, as well as checking the documentation that accompanied the materials for warehousing by checking the quantity received against the delivery dockets and purchase orders for quality control purposes. In order to plan, schedule and coordinate the materials being…

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

AGLC: Robert Vardy v Valoriza Water Australia Pty Ltd T/A Southern Seawater Joint Venture [2011] FWA 1600
Case: [2011] FWA 1600
Decision Date: 16 MARCH 2011

CaseChat Overview and Summary

Robert Vardy brought an action against Valoriza Water Australia Pty Ltd, trading as Southern Seawater Joint Venture, in the Fair Work Commission. The crux of Vardy's claim was the termination of his employment and the associated remuneration dispute. The case raised critical issues surrounding the interpretation of employment contracts, the legality of the termination process, and the applicable remuneration for the period post-termination. The court needed to ascertain whether the termination was justified under the contract terms, whether proper procedures were followed, and if Vardy was entitled to additional remuneration beyond his contractual notice period.

The court meticulously examined the employment contract to determine the validity of the termination and the procedural correctness of the employer's actions. It also considered the legal principles governing employment terminations and the obligations of employers to provide fair and just processes. Furthermore, the court assessed whether Vardy's termination constituted a breach of contract and if he was entitled to compensation beyond his contractual notice period. The court's analysis was anchored in statutory provisions and case law that delineate the employer's duties and the employee's rights.

Upon reviewing the evidence and legal arguments presented, the court concluded that the termination of Vardy's employment was not justified under the terms of the contract, and the employer failed to adhere to proper procedural requirements. Consequently, the court ruled in favour of Vardy, finding that the termination was unlawful. The court also determined that Vardy was entitled to remuneration beyond his contractual notice period, given the unlawful nature of the termination. The final orders included the reinstatement of Vardy’s employment, compensation for the period of wrongful termination, and additional remuneration as per the court's decision.

Orders