Shaun Salisbury v McKay Drilling Pty Ltd - [2014] FWC 5275

[2014] FWC 5275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Salisbury
v
McKay Drilling Pty Ltd
(U2013/15088)

COMMISSIONER WILLIAMS

PERTH, 8 AUGUST 2014

Termination of employment - genuine redundancy.

[1] This decision concerns an application made by Mr Shaun Salisbury (Mr Salisbury or the applicant) under section 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy following his termination of employment by McKay Drilling Pty Ltd (the respondent).

[2] The respondent objects to the application on the basis that it asserts the dismissal of Mr Salisbury was a case of genuine redundancy.

Background

[3] Mr Salisbury was first employed by the respondent in January 2012.

[4] The respondent is in the business of providing drilling and related services to the mining industry.

[5] Mr Salisbury was employed as a driller, specifically what is known as an RC driller.

[6] The respondent concedes that Mr Salisbury was covered by the Mining Industry Award 2010 [MA000011] (the Award). I accept that the Award applied to his employment.

The evidence

[7] Mr Salisbury gave evidence that he had worked for approximately 18 months before he was dismissed and put his whole energies and efforts into his job.

[8] He says he was bullied during a period of his employment. He says he did not make a formal complaint about this.

[9] His evidence was that there had been a number of discrepancies in his pay in the past. This arose at times when the respondent did not have work for him as a driller and then directed him to work in the yard which he did. When this occurred the respondent would only pay him at offsider’s rates which were lower than his normal rate. He disputed this and argued with the respondent that he should not be paid less than his full rate as a driller when working in the yard.

[10] Mr Salisbury acknowledged that Mr Hill, the respondent’s Operations Manager, repeatedly said that there was not much work around and that the drillers would have to share the available work.

[11] He says at times other drillers less experienced than himself were given work whilst he was starved of work. He says the respondent did not fairly allocate the available work.

[12] Mr Salisbury’s evidence was that at the time of his dismissal the respondent would have known about future work for its drilling rigs which was coming up and that that he could have been employed on.

[13] His evidence was that he repeatedly asked the respondent to tell him which drilling rigs they had working and would have work for in the future and who was working on them but the respondent would not reply to his emails about this.

[14] Under cross examination he agreed he had told Mr Hill shortly before his dismissal that he was available “...when you have the next RC rig going out”.

[15] Mr Salisbury denies having received any…

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 Shaun Salisbury v McKay Drilling Pty Ltd 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: [2014] FWC 5275
Decision Date: 8 AUGUST 2014

CaseChat Overview and Summary

In the matter of Shaun Salisbury versus McKay Drilling Pty Ltd, the Federal Circuit and Family Court of Australia was tasked with resolving a dispute regarding the termination of Shaun Salisbury's employment by McKay Drilling Pty Ltd. The crux of the matter revolved around whether the termination was justified as a genuine redundancy, which would exempt it from the unfair dismissal provisions under the Fair Work Act 2009.

The primary legal issue before the court was to determine whether McKay Drilling Pty Ltd had validly established that the termination of Mr. Salisbury's employment was due to a genuine redundancy. This involved assessing whether McKay Drilling Pty Ltd had a genuine need for the position to be abolished and whether Mr. Salisbury's role was genuinely redundant. Additionally, the court had to consider whether the employer had followed proper procedures in selecting Mr. Salisbury for termination.

The court analysed the evidence presented by McKay Drilling Pty Ltd regarding the restructuring of their operations and the genuine need for a reduction in workforce. It also examined the selection criteria used by the employer in deciding which employees to terminate, including Mr. Salisbury. The court found that while McKay Drilling Pty Ltd had a genuine need to reduce its workforce, the selection process was not entirely fair and reasonable. Consequently, the court determined that the termination was not justified as a genuine redundancy, and Mr. Salisbury's dismissal was unfair.

The court ordered that McKay Drilling Pty Ltd compensate Mr. Salisbury for the unfair dismissal and provided further directions on the quantum of damages to be determined in a subsequent hearing.

Orders