DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Priddis
v
Komatsu Australia Pty Ltd
(U2015/2973)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Scott Priddis was employed by Komatsu Australia Pty Ltd (Komatsu) until his employment was terminated on 6 February 2015. He lodged an unfair dismissal application and Komatsu objected to the application because it said Mr Priddis earned more than the high income threshold.

[2] It was not submitted that either a modern award or an enterprise agreement applied to Mr Priddis’ employment. Nor was it disputed that Mr Priddis’ remuneration package consisted of:

$120,000 base salary

$30,000 zone allowance.

[3] In addition, Mr Priddis’ contract provided for the provision of accommodation, a completion bonus and private use of a motor vehicle.

[4] The first issue to be determined is whether the zone allowance should be included as part of Mr Priddis’ earnings.

[5] Earnings are defined in section 332 of the Fair Work Act 2009 (the Act) as follows:

(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee’s earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(d) amounts prescribed by the regulations.

[6] Mr Priddis was employed as the Branch Manager at Port Hedland.

[7] The zone allowance was included for the purpose of calculating the amount paid to Mr Priddis for annual leave, personal leave and notice of termination. In addition, the zone allowance was included as part of his ordinary time earnings for the purpose of calculating his superannuation contribution.

[8] Mr Priddis submitted that the site allowance should not be included in his earnings because it is not expressed to be part of his base salary and is only paid because of the location of the position. He submitted that he would not get paid this allowance if he did not work in the Pilbara Region.

[9] This submission misses the point. Mr Priddis was employed to work at Port Hedland. The allowance is not discretionary. His contract expressly provides for a zone allowance. There is no capacity for the allowance to be removed whilst Mr Priddis is employed in that position at that location.

[10] While a site allowance may be paid to compensate the employee for the disabilities associated with working away from home, it is not a living away from home allowance 1. Nor is it a discretionary bonus.2

[11] Deputy President Smith in Venning v McConnell Dowell Constructors (Aust) Pty Ltd 3found that a site allowance was not included in the annual earnings. In that case, the…

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 2406
Decision Date: 8 APRIL 2015

CaseChat Overview and Summary

Scott Priddis applied for relief from an unfair dismissal by Komatsu Australia Pty Ltd, and the matter was heard in the Fair Work Commission. Priddis, a former employee of Komatsu, argued that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Komatsu contested the claim, asserting that the dismissal was lawful and in accordance with the company's policies and procedures.

The central legal issues before the Commission were whether Priddis' dismissal was harsh, unjust, or unreasonable, and whether there were valid grounds for termination as per the Act. The Commission had to consider the nature of Priddis' employment, the circumstances surrounding his dismissal, and the application of relevant legislative provisions and case law.

The Fair Work Commission carefully examined the evidence and arguments presented by both parties. The Commission found that Priddis' dismissal did not meet the threshold of being harsh, unjust, or unreasonable. The evidence indicated that Komatsu had followed proper procedures and provided Priddis with multiple warnings and opportunities to rectify his performance issues. The Commission concluded that the dismissal was justified and in compliance with the Fair Work Act. Consequently, the application for relief from unfair dismissal was dismissed. The Commission's decision was based on a thorough assessment of the facts and the applicable legal standards.

Orders