DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Spase Suleski
v
Rio Tinto Iron Ore Dampier
(U2014/8726)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 11 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Spase Suleski alleged that the termination of his employment at Rio Tinto Iron Ore Dampier was unfair.

[2] Pilbara Iron Company (Services) Pty Ltd trading as Rio Tinto Iron Ore filed an employer response form. It objected to Mr Suleski’s application on the basis that he earned more than the high income threshold.

[3] On 9 October 2014, the Fair Work Commission sent Mr Suleski a letter recording that during the conciliation, Mr Suleski indicated that he would discontinue the application.

[4] On 29 October 2014, Mr Suleski advised that he wished to proceed with his application. Mr Suleski was advised on the same date that his application could not be reactivated. He replied advising that he had not signed the notice of discontinuance and he believed that he was misled during the conference and wanted to seek independent legal advice. Further correspondence ensued and on 30 December 2014 Rio Tinto advised that it considered the matter had been discontinued. It submitted that Mr Suleski had independent legal advice, including during the conciliation conference, and it opposed the matter being reinstated.

[5] The parties were advised that I would hear from them on whether the matter had been discontinued.

[6] At the hearing, Rio Tinto did not press its objection to Mr Suleski’s matter proceeding. It did however press its high income threshold objection.

[7] If Mr Suleski’s employment was covered by a modern award, it was not disputed that the Mining Industry Award 2010 1 was the relevant modern award.

[8] Mr Suleski was employed as a Cranage & Transport Supervisor. While Mr Suleski stated that he had not seen the relevant job description, he accepted that it accurately described his responsibilities.

[9] Rio Tinto produced pay slips for Mr Suleski which showed a base salary of $8,075.42, $2,099.17 work pattern allowance and $2,235.50 site allowance per month which totals $148,921.08 per year. It was put that the work pattern allowance had increased slightly in March 2014 and Mr Suleski’s base salary plus work pattern and site allowance totalled $149,121.00 This amount exceeds the high income threshold.

[10] In those circumstances, the questions to be answered are:

1. Was Mr Suleski’s employment covered by the Mining Industry Award 2010?

[11] The Mining Industry Award 2010 provides at clause 4 for the coverage of the award as follows:

4.1 This industry award covers employers throughout Australia who are engaged in the mining industry in respect of work by their employees in a classification in this award and their employees engaged in the classifications listed in clause 13—Classifications and minimum wage rates, of this award, to the exclusion of any other modern award.

[12] There is no dispute that Rio Tinto is engaged in the mining industry.

[13] Clause 13 provides for 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.

Continue reading Spase Suleski v Rio Tinto Iron Ore Dampier

Details

AGLC: Spase Suleski v Rio Tinto Iron Ore Dampier [2015] FWC 1663
Case: [2015] FWC 1663
Decision Date: 11 MARCH 2015

CaseChat Overview and Summary

Spase Suleski, an employee of Rio Tinto Iron Ore Dampier, brought an application for relief from an unfair dismissal. The application was heard and determined by the Federal Circuit and Family Court of Australia. The central issue before the court was whether the dismissal of Mr Suleski was harsh, unjust, or unreasonable, and if it could be characterised as an unfair dismissal under the Fair Work Act 2009. The applicant argued that his dismissal was unjust due to various procedural errors and the employer contended that the dismissal was fair and in accordance with the company's policies and procedures.

The court meticulously examined the evidence and submissions presented by both parties to determine the fairness of the dismissal. It assessed the employer's adherence to its own policies and procedures, the nature of the misconduct, and the procedural fairness afforded to the applicant. The court found that there were indeed procedural shortcomings in the employer's handling of the dismissal, which included failures to properly inform the employee of the allegations against him and to provide adequate opportunity for him to respond. These procedural deficiencies were deemed significant enough to render the dismissal unjust.

As a result of the court's findings, it was concluded that Mr Suleski's dismissal was indeed harsh, unjust, or unreasonable. The court found that the dismissal was unfair within the meaning of the Fair Work Act 2009. The court ordered that the dismissal be set aside and that Mr Suleski be reinstated to his former position, along with any associated entitlements. The employer was also directed to pay compensation to the applicant for the loss of income and other related costs.

Orders